Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to consummate the Equity Financing at or prior to the Effective Time. (b) Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter. (c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii). (d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 4 contracts
Sources: Agreement and Plan of Merger (Ocean Imagination L.P.), Agreement and Plan of Merger (Zhang Ray Ruiping), Agreement and Plan of Merger (Ctrip Investment Holding Ltd.)
Financing. (a) Subject to the terms Each of Parent, Bidco and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts efforts, and shall cause their respective Subsidiaries to use reasonable best efforts, to take or shall cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to maintain the commitments under and to consummate the Equity Debt Financing at and obtain the proceeds thereof (including for the avoidance of doubt, the Bridge Facility Agreement or prior any replacement financing (provided, that (i) the conditions to the Effective Timeavailability of any such replacement financing shall not be materially less favorable to Parent than those of the Bridge Facility Agreement and (ii) the other terms of such replacement financing shall not be materially less favorable to Parent than those of the Bridge Facility Agreement in any manner that materially adversely affects the ability or likelihood of Parent, Bidco or either Merger Sub from timely consummating the transactions contemplated by this Agreement)) in an amount sufficient, together with other funds available to the Parent and its Subsidiaries, to enable Parent or Bidco to pay in cash the Required Financing Amount at the Closing.
(b) (i) From time to time, upon the written request of the Company, Parent shall inform the Company in reasonable detail on the status of its efforts to arrange the Debt Financing and (ii) Parent shall give the Company prompt written notice of (iA) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of the Bridge Facility Agreement (other than any New Sponsor Equity Commitment Letter by any party thereto or termination in connection with a replacement financing thereof), (iiB) upon the receipt of any written notice or other communication from any Financing Source with respect to such Financing Source’s failure or anticipated failure to fund its commitments under any definitive agreements relating to the Debt Financing (other than in connection with a replacement lender assuming the commitments of a defaulting lender pursuant to the documentation related to the applicable Debt Financing), (C) any material default or material breach by any party to the Debt Financing of which Parent, Bidco or either Merger Sub has become aware (other than in connection with a New Sponsor Equity Commitment Letter with respect replacement lender assuming the commitments of a defaulting lender pursuant to the documentation related to the applicable Debt Financing) and (D) any threatened breach condition precedent of any material provision of such New Sponsor Equity Commitment Letter the Debt Financing as to which Parent, Bidco or threatened termination of any such New Sponsor Equity Commitment Lettereither Merger Sub believes will not be satisfied at Closing.
(c) Each party hereto shall provideNotwithstanding anything in this Agreement to the contrary, Parent, Bidco, and shall cause each Merger Sub acknowledge and agree that the receipt and availability of its Subsidiaries and each any funds or financing is not a condition to Closing under this Agreement nor is it a condition to Closing under this Agreement for Parent to obtain all or any portion of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Debt Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)other financing.
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 4 contracts
Sources: Merger Agreement (Astrazeneca PLC), Merger Agreement (Alexion Pharmaceuticals, Inc.), Merger Agreement (Alexion Pharmaceuticals, Inc.)
Financing. (a) Subject to From the terms and conditions date of this AgreementAgreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX, each of Parent and Merger Sub its Affiliates shall use its reasonable best efforts to take, or cause to be taken, all actions, and use reasonable best efforts to do, or cause to be done, all things reasonably necessary or advisable, to arrange and obtain the Debt Financing and to consummate the Equity Debt Financing at on or prior to the Effective TimeClosing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: (i) comply with and maintain in effect the Debt Commitment Letter (subject to any amendment, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below); (ii) satisfy, or obtain a waiver thereof, on a timely basis all Financing Conditions to the extent within the control of Parent and its Affiliates; (iii) negotiate, execute and deliver Debt Financing Documents to the extent required to pay the Required Amount (after taking into account any cash on hand, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) and other sources of immediately available funds), which shall reflect the terms contained in the Debt Commitment Letter (including any “market flex” provisions (if any) related thereto) or on such other terms acceptable to Parent that would not constitute an Adverse Effect on Financing as compared to those set forth in the Debt Commitment Letter delivered to the Company on the date hereof; and (iv) in the event that the Offer Conditions have been satisfied or waived or, upon funding would be satisfied, consummate the Debt Financing (including by instructing the Debt Financing Sources to fund the Debt Financing in accordance with the Debt Commitment Letter, and enforcing Parent’s rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing).
(b) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX, Parent and its Affiliates shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter breach, repudiation or termination of any New Sponsor Equity Commitment Letter threatened material breach or repudiation by any party thereto to the Debt Commitment Letter of which Parent or (ii) its Affiliates becomes aware; provided that none of Parent or Merger Sub shall be required to disclose or provide any such information, the disclosure of which, in the judgement of Parent upon the receipt advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letterconfidentiality obligation.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, In the event all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness portion of the Company in connection with Debt Financing becomes unavailable on the consummation terms and conditions contemplated by the Debt Commitment Letter (including the flex provisions (if any)) (other than as a result of the TransactionsCompany’s breach of any provision of this Agreement or failure to satisfy the conditions set forth in Section 8.1 and Annex 1), including then Parent and its Affiliates shall (i) promptly notify the Company obtaining approval of thereof and the reasons therefor, (Aii) use reasonable best efforts to obtain alternative financing from the same or alternative Debt Financing Entities on terms and conditions, taken as a whole, no less favorable to Parent than the Financing Conditions, not involving any conditions that would constitute an increase Adverse Effect on Financing (as defined below) as compared to those set forth in the size of the Company Board to such number as is requested in writing by Parent and (B) the election Debt Commitment Letter delivered to the Company Board on the date hereof, that, when taken together with the portion of the individuals who will serve as directors Debt Financing that remains available and any cash on hand, available lines of the Surviving Company, in each case of clauses credit (Aincluding under Borrower’s existing revolving credit and securitization facilities) and (B), effective as other sources of immediately prior available funds, is at least equal to the Effective TimeRequired Amount, as promptly as practicable following the occurrence of such event, and (iiiii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such documents or instruments as alternative financing; provided that any provisions set forth in such new financing commitment relating to fees, pricing terms, “market flex” provisions (if any) and other terms that are customarily redacted (including any dates related thereto) may be required for redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the Surviving Company’s due assumption ofaggregate principal amount of such alternative financing to be funded on the Closing Date or impose additional conditions precedent to the funding of such alternative financing on the Closing Date.
(d) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX, and succession to, without the prior written consent of the Company, Parent and its Affiliates shall not amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter or any Debt Financing Document if such amendment, modification, supplement, restatement, assignment, substitution or replacement would (A) impose additional conditions precedent or expand upon the conditions precedent to the funding of the Debt Financing, (B) reduce the amount of the Debt Financing or the net cash proceeds available from the Debt Financing to an amount that is less than the Required Amount (after taking into account any cash on hand, available lines of credit (including under Borrower’s obligations under the 2022 Indenture existing revolving credit and the Facility Agreement, including (isecuritization facilities) customary closing certificates and other similar documents as may be reasonably requested by sources of immediately available funds), (C) prevent or materially delay or make materially less likely the trustee funding of the 2022 Notes Debt Financing (or as may be required under the Facility Agreement in connection with satisfaction of the Financing Conditions) on the Closing Date or materially impair, delay or prevent the consummation of the Transactionstransactions contemplated by this Agreement, including the Offer and the Merger, (D) materially adversely affect Parent’s ability to consummate the transactions contemplated by this Agreement, including the Offer and the Merger and or (iiE) customary legal opinions as are required by materially adversely impact the 2022 Indenture ability of Parent or any of its Affiliates’ to enforce their respective rights against the Debt Financing Sources or any of the other parties to the Debt Commitment Letters or the Facility Agreement definitive agreements with respect thereto (clauses (A) through (E), each an “Adverse Effect on Financing”); provided that Parent may, without the prior written consent of the Company, amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter, including (1) to add and appoint additional arrangers, bookrunners, underwriters, agents, lenders and similar Debt Financing Entities that have not executed the Debt Financing Documents as in effect on the date hereof and, in connection therewith, amend the economic and other arrangements with respect to such appointments, (2) modify pricing, (3) terminate or reduce any commitments under the Debt Financing in order to obtain alternative sources of debt financing in lieu of all or a portion of the Debt Financing and/or (4) increase the aggregate amount of the Debt Financing, in each case, so long as such amendments would not be reasonably expected to result in an Adverse Effect on Financing. Upon request of the Company, Parent shall keep the Company informed in reasonable detail of the status of Parent’s efforts to arrange the Debt Financing. Any alternative, substitute or replacement debt financing obtained by Parent in accordance with this paragraph and the previous paragraph is the “Alternative Financing.” For purposes of this Agreement, references to “Debt Financing” shall include the financing contemplated by any Alternative Financing and references to “Debt Commitment Letter”, “Debt Fee Letters”, “Debt Financing Documents”, “Debt Financing Entities”, “Debt Financing Sources”, or “Financing” shall include the documents (or commitments or financing sources, as applicable) in connection with any Alternative Financing to the consummation extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the Transactionssame extent as the Debt Financing. Notwithstanding anything to the contrary contained in this Agreement, in no event shall Parent or its Affiliates be required to pay any fees or any interest rates applicable to the Alternative Financing in excess of those contemplated by the Debt Commitment Letter as in effect on the date hereof (including the market flex provisions (if any)) or agree to any term (including any market flex term (if any)) less favorable (taken as a whole) to Parent than such term contained in the Debt Commitment Letter as in effect on the date hereof (including the market flex provisions (if any)). Parent and Merger Sub expressly acknowledge and agree that their obligations under this Agreement, including their obligations to consummate the Offer and the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of financing.
Appears in 4 contracts
Sources: Agreement and Plan of Merger (H&E Equipment Services, Inc.), Merger Agreement (United Rentals, Inc.), Agreement and Plan of Merger (H&E Equipment Services, Inc.)
Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Subject to Landlord will enter into a Lender Recognition Agreement with the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to consummate the Equity Financing at or prior to the Effective Time.Leasehold Mortgagee;
(b) Parent The Landlord shall give not be required to sign any Trust Deed or the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter Note, or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.otherwise become obligated thereunder;
(c) Each party hereto No such lien, charge or encumbrance shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to constitute a lien or encumbrance upon the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase Landlord’s fee title in the size of Premises or their reversionary interest in the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).Improvements;
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for Any interest in the Surviving Company’s due assumption ofPremises which the Trust Deed establishes in a trustee, and succession toany lien which it creates, shall expire on or before the Companydate of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s obligations right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under the 2022 Indenture such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and the Facility Agreement, including restrictions of this Lease and to all rights of Landlord hereunder;
(i) customary closing certificates and other similar documents The Landlord will accept performance under this Lease by any Leasehold Mortgagee as may though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be reasonably requested deemed extended by the trustee number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the 2022 Notes foreclosure of the Trust Deed, the holder or as may beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be required commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the Facility Agreement holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the consummation terms of this Lease shall contain the written agreement of the Transactions, including the Merger and (ii) customary legal opinions as are required Leasehold Mortgagee that Landlord shall be notified by the 2022 Indenture Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or the Facility Agreement in connection with the consummation destruction of the Transactions, including Improvements shall be available for restoration thereof to the Mergerextent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 4 contracts
Sources: Ground Lease, Ground Lease, Ground Lease
Financing. (a) Subject Parent shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable to obtain funds sufficient to fund the Merger Consideration and the other Merger Amounts on or prior to the date upon which the Merger is required to be consummated pursuant to the terms hereof. In furtherance and not in limitation of the foregoing, unless and until Parent has (I) unrestricted and uncommitted cash on hand that will be available on the Closing Date to fund the Merger Amounts plus (II) cash deposited in one or more escrow accounts designated for use to pay the Merger Amounts (provided that the terms of the escrow agreement governing such escrow arrangement do not impose conditions precedent or contingencies to the release of such cash for purposes of funding the Merger Amounts that are more onerous than the conditions set forth in the Commitment Letter in effect as of the date hereof or that would reasonably be expected to (1) materially delay, prevent or impede the consummation of the Merger, (2) make the funding of the availability of the cash in such escrow (or satisfaction of the conditions to the release of such cash) less likely to occur than the funding of the Financing pursuant to the Commitment Letter as in effect as of the date hereof or (3) adversely impact the ability of Parent or Merger Sub to enforce its rights in respect of the escrowed cash in any material respect as compared to its ability to enforce its rights against the other parties to the Commitment Letter as in effect as of the date hereof (any cash that satisfies the requirement of the immediately preceding clause (I) or clause (II), “Funding Cash”) in an amount sufficient to fund the Merger Amounts in full on the Closing Date , Parent and Merger Sub shall, subject to the terms of this Agreement (including the rights of Parent and Merger Sub in this Section 6.11(a) to obtain Permitted Alternative Financing), use their reasonable best efforts to take, or cause to be taken, all actions and use their reasonable best efforts to do, or cause to be done, all things necessary or advisable to arrange the Financing and to consummate the Financing at or prior to the Effective Time, including using reasonable best efforts to (i) maintain in effect the Commitment Letter; (ii) negotiate, execute and deliver definitive documentation for the Financing that reflects the terms contained in the Commitment Letter (subject to any “market flex” provisions included in the Fee Letter or any fee letter relating to a Required Alternative Financing); (iii) satisfy (or seek a waiver of) on a timely basis all of the conditions precedent set forth in the Commitment Letter and any definitive document related to the Financing that are within the control of, Parent and Merger Sub and comply with their obligations thereunder; (iv) in the event that the conditions set forth in Section 7.01 and Section 7.02 and the conditions precedent set forth in the Commitment Letter have been satisfied or, upon funding would be satisfied, enforce their rights under the Commitment Letter and any definitive documentation for the Financing and (v) in the event that the conditions set forth in Section 7.01 and Section 7.02 have been satisfied or, upon release of any Funding Cash from escrow, would be satisfied, enforce their rights under all escrow arrangements with respect to any Funding Cash. Parent and Merger Sub shall have the right from time to time to amend, restate, replace, supplement or otherwise modify, or waive any of its rights under, the Commitment Letter and/or substitute other debt financing for all or any portion of the Financing from the same and/or alternative financing sources (a “Permitted Alternative Financing” and, together with any Required Alternative Financing as described in clause (b) below, each an “Alternative Financing”); provided that any such amendment, restatement, supplement, replacement or other modification to or waiver of any provision of the Commitment Letter shall not, without the prior written consent of the Company, (A) reduce the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount, unless the Financing is increased by a corresponding amount) to be funded at or prior to Closing such that the aggregate amount of Financing plus the Funding Cash of the Parent as of the date of any such amendment, restatement, supplement, replacement, modification or waiver, would not be sufficient to pay the Merger Consideration and the other Merger Amounts or (B) impose new or additional conditions precedent or contingencies to the Financing or otherwise amend, modify, or expand any conditions precedent to the funding of the Financing, or any other term or condition of the Commitment Letter or the Financing, in each case, in a manner that would reasonably be expected to (1) materially delay, prevent or impede the consummation of the Merger, (2) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur or (3) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Commitment Letter or the definitive agreements with respect thereto, in any material respect; provided, further, that Parent and Merger Sub may amend, restate, replace, supplement or otherwise modify the Commitment Letter on one or more occasions to add additional arrangers, bookrunners, agents and lenders in accordance with the terms of the Commitment Letter (but not to make any other changes other than to the extent otherwise permitted under this Section 6.11(a)). For purposes of this Agreement, the definition of “Commitment Letter” shall include any amendment, restatement, supplement or other modification or waiver thereto, or any replacement thereof, in each case permitted by this Section 6.11(a), and the definition of “Financing” shall include any Alternative Financing.
(b) Unless Parent then has Funding Cash in an amount sufficient to fund the Merger Amounts in full on the Closing Date, if any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter (subject to any “market flex” provisions included in the Fee Letter and other than on account of any Permitted Alternative Financing having been completed) other than due to the failure of any condition set forth in Section 7.01 or Section 7.02 of this Agreement, each of Parent and Merger Sub shall (A) use its reasonable best efforts to consummate obtain alternative debt financing from the Equity Financing at same or prior alternative sources as promptly as practicable following the occurrence of such event in an amount, together with any Funding Cash of the Parent as of such date, that will still enable Parent and Merger Sub to pay the Merger Consideration and any other Merger Amounts, and which does not include any conditions to the Effective Timeconsummation of such alternative financing that are more onerous than the conditions set forth in the Commitment Letter as in effect as of the date hereof (a “Required Alternative Financing”) and (B) promptly notify the Company of such unavailability and the reason therefor.
(bc) Parent shall, upon reasonable request, keep the Company informed in reasonable detail of the status of its efforts to arrange the Financing and shall provide to the Company copies of any amendment, restatement, replacement, supplement or modification of the Commitment Letter and all executed final definitive documents relating to the Financing (excluding and redacting any provisions related solely to fees, pricing caps, economic and “market flex” terms and any other provisions in any fee or engagement letters that are customarily redacted in connection with transactions of this type and that would not in any event adversely affect the conditionality, enforceability, availability, termination or amount of the Financing). Without limiting the generality of the foregoing, Parent shall give the Company prompt notice written notice, which shall include reasonably detailed information regarding the applicable circumstances referenced in the following clauses: (i) upon becoming if Parent becomes aware of any actual or threatened breach of or default by any material provision of any New Sponsor Equity party to the Commitment Letter or termination any definitive document related to the Financing, if such breach or default would reasonably be expected to result in a delay of the Closing Date or unavailability of any New Sponsor Equity Commitment Letter by any party thereto or of the Financing; (ii) upon of the receipt by it of any written notice or other written communication from any party to a New Sponsor Equity Commitment Letter Person with respect to any threatened breach of (A) actual or potential breach, default, termination or repudiation by any material provision of such New Sponsor Equity party to the Commitment Letter or threatened termination any definitive document related to the Financing or any provisions of the Commitment Letter or any definitive document related to the Financing, or (B) material dispute or disagreement between or among any parties to the Commitment Letter or any definitive document related to the Financing with respect to the obligation to fund any portion of the Financing or the amount of the Financing to be funded at Closing, in each case if such breach, default, termination, repudiation, dispute or disagreement would reasonably be expected to result in a delay of the Closing Date or unavailability of any of the Financing; (iii) if for any reason Parent or Merger Sub believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions, in the manner or from the sources contemplated by the Commitment Letter (subject to the “market flex” provisions included in the Fee Letter or any fee letter relating to any Alternative Financing) or the definitive documents related to the Financing unless Parent has Funding Cash as of such New Sponsor Equity Commitment Letterdate in an amount sufficient to fund the Merger Amounts in full on the Closing Date, and (iv) upon consummating the Financing. As soon as reasonably practicable, after the date the Company delivers Parent or either Merger Sub a written request, Parent and Merger Sub shall provide any additional information reasonably requested by the Company relating to any circumstance referred to in clause (i), (ii), (iii) or (iv) of the immediately preceding sentence.
(cd) Each party hereto shall provideFrom the date hereof until the earlier of (i) the Closing Date and (ii) termination of this Agreement pursuant to Section 8.01, the Company shall, and shall cause each of its Subsidiaries to, and each of shall use its reasonable best efforts to cause its and their respective Representatives to, use reasonable best efforts to provide, all Parent and Merger Sub such customary cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company requested by Parent in connection with the consummation any Financing (which, for purposes of this clause (d), shall include any capital markets financing sought by Parent in replacement of all or any portion of the TransactionsFinancing contemplated by the Commitment Letter in compliance with the terms of this Agreement), including (i) the Company obtaining approval of including, without limitation, (A) an increase in the size participating (including by teleconference or virtual meeting platforms) (including by making members of the Company Board to such number as is requested in writing by Parent senior management, certain representatives and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Companycertain non-legal advisors, in each case with appropriate seniority and expertise, available to participate), upon reasonable advance notice, in a reasonable number of clauses meetings, presentations, non-deal and investor road shows, rating agency presentations and drafting sessions, and participating in reasonable and customary due diligence, in each case, with or by the Financing Sources (Aor prospective lenders or investors in any Financing) at mutually agreed times and places, (B) furnishing Parent and the Financing Sources, as promptly as reasonably practicable, with the Required Information, (C) assisting Parent and the Financing Sources in the preparation of (I) customary offering documents, syndication documents and materials (including assistance in creating usual and customary “public versions” of the foregoing), effective as including confidential information memoranda, private placement memoranda, offering memoranda, prospectuses, lender and investor presentations, rating agency presentations, business and financial projections and similar documents and materials (which may incorporate by reference periodic and current reports filed by the Company with the SEC), in connection with any Financing (all of immediately prior the foregoing, collectively, the “Offering Documents”), including providing the “MD&A” and business description to the Effective Timebe contained therein, and providing customary authorization and representation letters with respect thereto, and (iiII) the Company using commercially reasonable efforts to ensure materials for any Offering Documents, including business projections and financial statements (including assisting Parent in preparing pro forma financial statements; provided that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither neither the Company nor any of its Subsidiaries or Representatives shall (x) be responsible in any manner for any pro forma financial information or pro forma adjustments relating to the Merger and the consideration therefor that is required to pay any commitment or similar fee prior be made to the Effective Time historical information for such pro forma financial information) and identifying any portion thereof as containing material, non-public information relating to the Company and its Subsidiaries or their respective securities, (yD) reasonably cooperating with the marketing and syndication efforts of Parent, Merger Sub and any Financing Sources for any portion of any Financing, including cooperation in connection with the obtaining of ratings, (E) using its reasonable best efforts to cause its current independent accountants to provide customary assistance and cooperation in any Financing, including using reasonable best efforts to cause such accountants to (I) participate in a reasonable number of drafting sessions and accounting due diligence sessions upon reasonable advance notice and at mutually agreed times and places, (II) provide any necessary customary written consents to use their audit reports relating to the Company and to be required named as an “Expert” in any document related to commit to taking any action that is not contingent upon the Closing Financing and (III) provide any customary “comfort letters” (including entry into any agreementcustomary negative assurance comfort, including change period comfort), (F) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence executing and delivering as of (but not before) the Effective Time, and reasonably assisting Parent shall promptly reimburse with Parent’s preparation of, definitive financing documents, including credit agreements, indentures, intercreditor agreements, pledge and security documents, and certificates (including borrowing base certificates), or other documents, to the Company for any reasonable extent reasonably requested by Parent and documented out-of-pocket costs incurred by it in connection with otherwise facilitating the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption pledging of, and succession togranting, the Company’s obligations under the 2022 Indenture recording and the Facility Agreementperfection of security interests in share certificates, including (i) customary closing certificates securities and other similar documents as may be reasonably requested collateral to secure any Financing; provided that the effectiveness of any definitive documentation executed by the trustee Company or any of the 2022 Notes its Subsidiaries and any such pledge, grant, recordation or as may perfection shall be required under the Facility Agreement in connection with subject to the consummation of the TransactionsMerger, (G) furnishing Parent and any Financing Sources promptly, and in any event at least four (4) Business Days prior to the Closing Date, with all documentation and other information relating to the Company and its Subsidiaries required by applicable regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case, to the extent that such documentation and information has been reasonably requested in writing (which may be by email) at least ten (10) Business Days prior to the Closing Date, (H) informing Parent if the chief executive officer, chief financial officer, treasurer or controller of the Company has knowledge of any facts as a result of which a restatement of any of the Company’s financial statements, in order for such financial statements to comply with GAAP, is necessary, (I) updating any Required Information (including financial statements) provided to Parent or the Merger Financing Sources as may be necessary so that such Required Information qualifies as Compliant prior to the Closing and (iiJ) customary legal opinions as are required facilitating the arrangement by Parent of approval of the Financing by the 2022 Indenture post-Closing boards of directors or the Facility Agreement in connection with the consummation equivalent governing bodies of Subsidiaries of the TransactionsCompany, including provided that (1) no Persons other than Persons who are directors or equivalent members of the Merger.boards of direct
Appears in 3 contracts
Sources: Merger Agreement (CMC Materials, Inc.), Merger Agreement (CMC Materials, Inc.), Merger Agreement (Entegris Inc)
Financing. (a) Subject Prior to the terms and conditions of this AgreementCharter Closing, each of Parent and Merger Sub shall use its reasonable best efforts to consummate take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Equity proceeds of the Financing at on the terms and conditions described in the Financing Commitment (or any other Financing in lieu thereof) (subject to any amendments, modifications, waivers or replacements not prohibited by this Section 6.19(a)), including using reasonable best efforts to (i) maintain in effect the Financing Commitment, (ii) satisfy on a timely basis (or obtain a waiver of) all conditions to funding the Committed Financing, (iii) negotiate and enter into definitive agreements with respect thereto on terms and conditions described in the Financing Commitment (subject to any amendments, modifications, waivers or replacements not prohibited by this Section 6.19(a)) on or prior to the Effective Time.
Charter Closing Date, (biv) enforce its rights under the Financing Commitment and (v) in the event that all conditions in the Financing Commitment (or any other Financing in lieu thereof) have been satisfied, cause the lenders and other Persons providing the Committed Financing (or any other Financing in lieu thereof) to fund on the Charter Closing Date the Committed Financing (or any other Financing in lieu thereof) required to consummate the Transactions. To the extent requested by the Company from time to time, Parent shall keep the Company informed on a reasonably current basis of the status of its efforts to obtain the Financing (or Alternative Financing) and provide to the Company copies of all material documents related to the Financing (or Alternative Financing). In the event any portion of the Committed Financing becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the Financing Commitment (and subject to any amendments, modifications or replacements not prohibited by this Section 6.19(a)) prior to the Charter Closing Date for any reason (A) Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of promptly notify the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver as promptly as practicable following the occurrence of such documents event, alternative financing (the “Alternative Financing”) in an amount sufficient to consummate the Transactions (after giving effect to any committed financing); provided, that such Alternative Financing would not reasonably be expected to prevent, impede or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with delay the consummation of the Transactions; provided, including further that Parent shall have no obligation to accept (i) any fees, interest or other economic terms (taken as a whole) that are less favorable in any respect to Parent than the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.fees,
Appears in 3 contracts
Sources: Merger Agreement (Brookfield Property Partners L.P.), Merger Agreement (Brookfield Asset Management Inc.), Merger Agreement (GGP Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to consummate (i) cause the Lender to fund the Debt Financing on the terms and conditions described in the Facility Agreement at or prior to the Effective Time, (ii) maintain in effect the Financing Commitments until the Transactions are consummated, (iii) satisfy on a timely basis all conditions precedent to funding of the Debt Financing applicable to Parent and Merger Sub in the Facility Agreement that are within its control, (iv) enforce its rights under the Rollover Agreement, Additional Rollover Agreements, the Equity Commitment Letter and the Facility Agreement to the extent necessary to fund the Merger Consideration, and (v) cause the Sponsor to fund the Equity Financing at or prior to the Effective Time; provided, that (i) Parent and Merger Sub may amend or modify the Financing Commitments and/or elect to replace all or any portion thereof; or (ii) in the event that any portion of the Debt Financing becomes unavailable other than due to the material breach of representations and warranties or covenants of the Company or a failure of a condition to be satisfied by the Company after providing notice to the Company and a reasonable opportunity to cure, Parent shall notify the Company and use its reasonable best efforts to arrange alternative financing (the “Alternative Financing”) from alternative sources in an amount sufficient, when added to the portion of the Financing that is available, for Merger Sub and the Surviving Corporation to pay (i) the Exchange Fund, and (ii) any other amounts required to be paid in connection with the consummation of the Transactions upon the terms and conditions contemplated hereby. Parent shall deliver to the Company as soon as practicable after such execution, a true and complete copy of the definitive agreement pursuant to which the Alternative Financing is committed to be provided (the “Alternative Facility Agreement”) as soon as practicable after execution thereof. To the extent applicable and subject to the terms and conditions of this Agreement, Parent and Merger Sub shall use their respective reasonable best efforts to obtain the Alternative Financing on the terms and conditions described in the Alternative Facility Agreement (including any “market flex” provision). Each of Parent and Merger Sub shall use its reasonable best efforts to (i) maintain in effect the Alternative Facility Agreement, (ii) satisfy on a timely basis all conditions in the Alternative Financing Agreement within its control, and (iii) enforce its rights under the Alternative Facility Agreement to the extent necessary to fund the Merger Consideration. Parent shall keep the Company reasonably informed on a reasonably current basis of the status of Parent’s efforts to arrange any Alternative Financing.
(b) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall not permit any amendment or modification to be made to, or any waiver of, any provision under, the Financing Commitments, or, if applicable, the Alternative Facility Agreement if such amendment or modification or waiver (i) reduces or would reduce the aggregate amount of the Financing and the Alternative Financing or (ii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Financing or the Alternative Financing, or otherwise expands, amends or modifies any other provisions of the Financing Commitments or, if applicable, the Alternative Facility Agreement in a manner that would reasonably be expected to (x) delay or prevent or make less likely the funding of the Financing or the Alternative Financing at the Effective Time or (y) adversely impact the ability of Parent, Merger Sub or the Company, as applicable, to enforce its rights against other parties to the Financing Commitments and, if applicable, the Alternative Facility Agreement, in each of clauses (x) and (y) in any material respect. Parent shall not consent to the termination or release of the obligations of the Lender, the Sponsor or any of the Rollover Shareholders under the Financing Commitments (or the Alternative Facility Agreement, if applicable), except for assignments and replacements of an individual lender in connection with the syndication of the Debt Financing or Alterative Financing that are permitted thereunder. Parent shall give the Company prompt notice promptly (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter provisions of, or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon to, the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment LetterFinancing Commitments and, if applicable, the Alternative Facility Agreement.
(c) Each party hereto shall provideThe Company shall, and shall cause each of its the Company’s Subsidiaries and each of their respective Representatives to, provide to provideParent and Merger Sub all reasonable cooperation requested by Parent or Merger Sub or their respective Representatives in connection with the Debt Financing and/or the Alternative Financing and the Transactions, all cooperation including, without limitation, (i) participating in meetings, presentations, road shows, due diligence sessions, drafting sessions, sessions with rating agencies and other meetings, including making the Company’s executive officers reasonably available to assist directly with the Lender or the Sponsor, (ii) assisting with the preparation of such materials (which shall include, but shall not be limited to bank information memoranda and information for rating agency presentations) as the Parent or its Representatives may reasonably request in connection with the Debt Financing and/or Alternative Financing, including using reasonable best efforts to obtain consents of accountants for use of their reports in any materials relating to the Debt Financing and/or the Alternative Financing and delivery of one or more customary representation letters, (iii) executing and delivering any pledge or security documents, currency or interest hedging arrangements or other definitive financing documents conditioned upon Closing or other certificates, legal opinions or documents as may be reasonably requested by Parent or Merger Sub (including a certificate of the chief financial officer of the Company or any borrowing Subsidiary of the Company with respect to solvency matters and consents of accountants for use of their reports in any materials relating to the Debt Financing and/or the Alternative Financing) or otherwise facilitating the pledging of collateral (including delivery of pay-off letters and other cooperation in connection with the payoff of existing Indebtedness and the release of all related Encumbrances), (iv) furnishing Merger Sub and its Debt Financing and/or Alternative Financing sources as promptly as practicable with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent and its Debt Financing and/or Alternative Financing sources, including, without limitation, all financial statements and projections and other pertinent information required under the Facility Agreement or the Alternative Facility Agreement and all financial statements and financial and non-financial information regarding the Company and its Subsidiaries as may be reasonably requested by Parent and of the type and form customary for the placement, arrangement and/or syndication of loans or distribution of debt contemplated by the Debt Financing and/or the Alternative Financing, (v) cooperating with advisors, consultants and accountants of Parent or its Debt Financing and/or Alternative Financing sources with respect to the Equity Financing conduct of any examination, appraisal or review of the financial condition or any debt financing of the assets or indebtedness liabilities of the Company or any of its Subsidiaries, including for the purpose of establishing collateral eligibility and values, (vi) using reasonable best efforts to obtain accountants’ comfort letters, consents, legal opinions, surveys, title insurance and other documentation and items relating to the Debt Financing and/or Alternative Financing as reasonably requested by Parent or Merger Sub and to arrange discussions among Parent and its Debt Financing sources and/or Alternative Financing Sources with other parties to the Material Contracts, Real Property Lease and Encumbrances, (vii) providing monthly financial statements (excluding footnotes) to the extent the Company customarily prepares such financial statements within the time frame such statements are prepared, (viii) taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Debt Financing and/or the Alternative Financing to evaluate the Company and the Company’s Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the consummation of the Transactionsforegoing, including (ivii) the Company obtaining approval of (A) an increase in the size of the Company Board entering into one or more credit or other agreements conditioned upon Closing and on terms satisfactory to such number as is requested in writing by Parent and (B) Merger Sub in connection with the election to Debt Financing and/or the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of Alternative Financing immediately prior to the Effective Time, (viii) at the Company’s option, taking or appointing a representative of Parent to take all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent or Merger Sub to permit the consummation of the Financing and the direct borrowing or incurrence of all of the proceeds of the Financing, including any high yield debt financing, by the Surviving Corporation or its Subsidiaries following the Effective Time, (xi) taking all corporate actions reasonably necessary to permit the consummation of the Debt Financing and/or the Alternative Financing, including without limitations the execution and delivery of any other certificates, instruments or documents, and to permit the proceeds thereof, together with cash at the Company and its Subsidiaries, to be made available on the Closing Date to consummate the Transactions, and (iixii) furnishing Parent, Merger Sub, their respective Representatives and sources of Debt Financing and/or Alternative Financing as promptly as practicable with all documentation and other information reasonably required by Governmental Authorities with respect to the Debt Financing and/or the Alternative Financing under applicable “know your customer” and anti-money laundering rules and regulations; provided, that (x) any such requested cooperation does not materially and unreasonably interfere with the ongoing operations of the Company and its Subsidiaries or (y) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) not be required to pay any commitment or other similar fee prior to incur any other liability in connection with the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective Financing prior to the Effective Time. If Other than as expressly contemplated by this Agreement is terminated in accordance with Agreement, Parent and Merger Sub acknowledge and agree that the Company and its terms Affiliates and its and their respective Representatives shall not, prior to the occurrence of the Effective Time, incur any liability to any financing provider or other third party under any financing that Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it or Merger Sub may raise in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)Transactions.
(d) The No later than five Business Days prior to the Closing Date and at all times until the Effective Time, the Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including cause (i) customary closing certificates one or more of its wholly-owned PRC Subsidiaries established or incorporated in the PRC (“PRC Subsidiaries”) to transfer and other similar documents as may be reasonably requested by deposit cash into one or more specified accounts (each, an “Onshore Bank Designated Account”) held with the trustee of the 2022 Notes or as may be required under Onshore Account Branch referred to in the Facility Agreement in connection with (or such other bank or financial institution approved by the consummation Lender as notified by Parent) and standing to the credit of the Transactions, including the Merger such PRC Subsidiaries and (ii) customary legal opinions as one or more of its wholly-owned Subsidiaries that are required by not established or incorporated in the 2022 Indenture PRC (“Offshore Subsidiaries”) to transfer and deposit cash into one or more specified accounts (each, an “Offshore Bank Designated Account”) held with the Offshore Account Bank referred to in the Facility Agreement and standing to the credit of such Offshore Subsidiaries, and shall do or cause to be done all such other things necessary to ensure, in connection with the consummation each of the Transactionsforegoing cases, including such that the Mergeraggregate balance standing to the credit of the Onshore Bank Designated Accounts and the Offshore Bank Designated Accounts is not less than RMB100,000,000 (or its equivalent, as determined using the conversion rate described in paragraph (e) of Clause 1.2 (Construction) of the Facility Agreement) until the Effective Time (such amount balance standing to the credit of the Onshore Bank Designated Accounts and the Offshore Bank Designated Accounts meeting the requirements of this provision, the “Onshore Required Balance”).
Appears in 3 contracts
Sources: Merger Agreement (Sequoia Capital China I Lp), Merger Agreement (Chiu Na Lai), Merger Agreement (Le Gaga Holdings LTD)
Financing. (a) Subject to the terms and conditions of this Agreement, each Parent shall (and shall cause its Affiliates to) use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Financing on the terms and subject only to the conditions (including pursuant to any “flex” provisions in any fee letter relating to the Debt Financing) set forth in the Financing Letters, including using commercially reasonable efforts to (i) comply with its obligations under (A) the Equity Funding Letters and (B) the Debt Commitment Letters and any definitive agreements related thereto, (ii) maintain in effect the Financing Letters (subject to Parent’s right to replace, restate, supplement, modify, assign, substitute, waive or amend the Financing Letters in accordance herewith) until the earliest of the consummation of the Transactions, the termination of this Agreement or the time at which any Alternative Debt Financing is available, (iii) negotiate and enter into definitive agreements with respect to the Debt Financing on a timely basis on terms and conditions (including the flex provisions) contained in the Debt Commitment Letters or otherwise not materially less favorable with respect to conditionality to Parent in the aggregate than those contained in the Debt Commitment Letters, (iv) satisfy on a timely basis all conditions contained in the Financing Letters that are applicable to Parent and Merger Sub shall use its reasonable best efforts Affiliates and the definitive agreements related thereto, including the payment of any commitment, engagement or placement fees required as a condition to consummate the Debt Financing or Equity Financing, as applicable, (v) if all conditions to the Debt Financing and the Equity Financing have been satisfied in accordance with the Debt Commitment Letters and Equity Funding Letters, respectively, cause the Persons committing to fund the applicable Financing to fund such Financing at or prior the Closing and (vi) enforce its rights under the Financing Letters and the definitive agreements relating to the Effective Time.
Financing. To the extent reasonably requested by the Company in writing from time to time, Parent shall keep the Company reasonably informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and provide to the Company copies (bincluding material drafts) of the material Debt Financing documents. Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.upon
Appears in 3 contracts
Sources: Merger Agreement (Ares Management LLC), Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Cincinnati Bell Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, each in the period between the date hereof and the Closing Date, Parent and Merger Sub shall use their respective reasonable best efforts to obtain the Financing on substantially the terms and conditions described in the Commitment Letters, and use reasonable best efforts to: (i) maintain in effect the Commitment Letters, (ii) negotiate definitive agreements with respect to the Debt Financing in accordance with the terms and conditions contained in the Debt Commitment Letter (or on terms no less favorable to Parent or Merger Sub than the terms and conditions in the Debt Commitment Letter) so that such agreements are effective no later than the Closing, (iii) satisfy prior to the Closing all conditions precedent applicable to Parent and Merger Sub in the Commitment Letters that are within their control and that have not been waived by the Financing Sources, (iv) consummate the Financing in accordance with the terms described in the Commitment Letters (or otherwise acceptable to Parent) at or prior to Closing, and (v) enforce the rights of Parent and Merger Sub under the Commitment Letters and cause the Financing Sources to fund the Financing at or prior to Closing in accordance with the terms of the Commitment Letters, including by commencing a litigation proceeding against any breaching Debt Financing Source in which Parent and Merger Sub will use their reasonable best efforts to compel such breaching Debt Financing Source to provide its portion of such Debt Financing as required. Any and all fees and expenses in connection with the Commitment Letters and/or the Financing shall be paid by Parent or, if the Closing occurs, the Surviving Corporation.
(b) Without limiting the generality of Section 5.07(a), Parent and Merger Sub shall give the Company prompt written notice of (i) Parent or Merger Sub becoming aware of any material breach by any party to the Commitment Letters, (ii) the receipt of any written notice or other written communication from any Financing Source with respect to any termination or repudiation by any party to the Commitment Letters, (iii) Parent or Merger Sub becoming aware of any material dispute or disagreement between or among any parties to any Commitment Letters that would reasonably result in a material breach under the Commitment Letters, (iv) if for any reason Parent or Merger Sub believes in good faith that it will not be able to obtain all or any portion of the Financing on substantially the terms and conditions contemplated by the Commitment Letters and (v) any amendment, modification or replacement of the Commitment Letters with copies thereof. As soon as reasonably practicable, but in any event within three (3) days of the date the Company delivers to Parent and Merger Sub a written request, Parent and Merger Sub shall provide any information reasonably requested by the Company relating to the circumstances in the foregoing sentence.
(c) Prior to the Closing, Parent and Merger Sub shall not agree to, or permit, any amendment or modification of, or waiver under, the Commitment Letters without the prior written consent of the Company (such consent not to be unreasonably withheld or delayed) if such proposed amendment, modification, supplement, restatement or replacement (x) materially reduces the aggregate amount of the Debt Financing or the Equity Financing to be funded at Closing which has not otherwise been replaced by another binding financing source reasonably acceptable to the Company; provided, that the Company agrees that any increase in the amount of the Equity Financing by the Equity Financing Sources in at least the amount of any deficiency in the Debt Financing and a binding commitment on terms and conditions not materially less favorable to the Company’s interests than the existing Debt Commitment Letter from a reasonably acceptable alternative debt financing source in at least the amount of such deficiency, in each case, is acceptable, or (y) imposes new or additional conditions precedent to funding or otherwise expands, amends or modifies the then existing conditions precedent to funding to the Financing on the Closing, in each case in a manner that would reasonably be expected to (i) prevent, hinder or delay the Closing or (ii) adversely impact the ability of Parent and Merger Sub to enforce their rights against the other parties to the Commitment Letters or the ability of the Company to enforce its rights under the Equity Commitment Letters, in each of clauses (i) and (ii) in any material respect. Parent and Merger Sub shall not release or consent to the termination of the obligations of the Financing Sources under the Commitment Letters, except for assignments and replacements of an individual lender under the terms of or in connection with the syndication of the Debt Financing or as otherwise expressly contemplated by the Debt Commitment Letter, provided that such assignments or replacements would not prevent, delay or impair the availability of the Debt Financing under the Debt Commitment Letter or the consummation of the transactions contemplated by this Agreement.
(d) Other than as permitted in clauses (a)-(c) above, in the event that Parent or Merger Sub become aware that any material portion of the Financing is reasonably likely not to be available at Closing under the Commitment Letters, Parent and Merger Sub shall (i) promptly notify in writing the Company of such circumstances and the reasons therefor and (ii) use their respective reasonable best efforts to obtain alternative financing from alternative financial institutions reasonably acceptable to the Company in an amount sufficient to consummate the transactions contemplated by this Agreement upon conditions not materially less favorable to the Company’s interests than the existing Commitment Letters as promptly as practicable following the occurrence of such event (and in any event no later than the Closing). Parent shall furnish the Company with complete, correct and executed copies of any material definitive agreements with respect to the Financing (including any alternative financing agreement) promptly upon their execution and shall keep the Company reasonably informed of the status of its efforts to arrange and consummate the Financing.
(e) In the period between the date hereof and the Closing Date, upon the request of Parent and Merger Sub, the Company shall and shall cause its Subsidiaries and its and their respective officers, directors, managers, employees, accountants, consultants, legal counsel, agents and other representatives, at Parent’s sole expense, to cooperate reasonably in connection with the arrangement and obtaining of the Financing, including (i) providing to Parent, Merger Sub and their Financing Sources from time to time all financial and other pertinent information regarding the Company and its industry reasonably requested by them (including information to be used in the preparation of one or more information packages regarding the business, operations, financial projections and prospects of the Company and its Subsidiaries customary for such Debt Financing or reasonably necessary for the syndication of the Debt Financing by the Debt Financing Sources), (ii) participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions with prospective lenders and sessions with rating agencies in connection with the Debt Financing, including direct contact between senior management (with appropriate seniority and expertise) and representatives (including accountants) of the Company and its Subsidiaries, on the one hand, and the Debt Financing Sources, potential lenders and investors for the Debt Financing, on the other hand, (iii) furnishing all financial statements reasonably required by the Commitment Letters within the time periods specified therein, (iv) assisting with the preparation and entering into as of the Effective Time of definitive agreements with respect to the Debt Financing (including review as of any disclosure schedules related thereto for completeness and accuracy) or the amendment of any of the Company’s or its Subsidiaries’ currency or interest hedging agreements, or other agreements, in each case, on terms satisfactory to Parent and that are reasonably requested by Parent in connection with the Debt Financing (provided, however, that prior to the Effective Time the Company shall only be required to amend any such agreement if the Guarantor shall provide the Company with indemnification satisfactory to the Company for the effects of any such amendment), (v) assisting with the preparation of materials for rating agency presentations, offering and syndication documents (including public and private information memoranda and lender presentations), business projections and similar marketing documents required in connection with the Debt Financing (provided, that any such presentations and similar documents shall contain disclosure and pro forma financial statements reflecting the Surviving Corporation and/or its Subsidiaries as the obligor and Parent shall be solely responsible for the preparation of any such pro forma financial statements contained therein, provided, that, the Company shall use its reasonable best efforts to consummate cause its independent auditors to provide its reasonable cooperation and assistance in connection with the Equity preparation of such pro forma financials) and other materials to be used in connection with obtaining the Debt Financing at and all documentation and other information required by the Debt Financing Sources for compliance with applicable “know your customer” and anti-money laundering rules and regulations, including U.S.A. Patriot Act of 2001, (vi) cooperating reasonably with the Financing Sources’ due diligence, (vii) executing customary authorization and management representation letters, (viii) reasonably cooperating in satisfying the conditions precedent set forth in the Commitment Letters or prior any definitive document relating to the Financing (to the extent the satisfaction of such condition requires the cooperation of, and is within the control of, the Company and its Subsidiaries), including but not limited to (A) permitting, subject to appropriate confidentiality arrangements, the prospective lenders and investors to evaluate the Company’s and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and (B) establishing bank and other accounts and security arrangements in connection with the foregoing, (ix) issuing customary representation letters to auditors and using reasonable best efforts to obtain legal opinions, surveys, title insurance, accountants’ comfort letters and consents to the use of accountants’ audit reports relating to the Company, (x) executing and delivering, as of the Effective Time.
(b) Parent shall give , any guarantees, pledge and security documents, other definitive financing documents, or other certificates or documents contemplated by the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Debt Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation hedging agreements as may be reasonably required requested by Parent or Merger Sub (including a customary certificate of the chief financial officer of the Company with respect to solvency matters and otherwise reasonably facilitating the Equity Financing pledging of collateral or any debt financing or indebtedness provision of the Company guarantees in connection with the Debt Financing), (xi) using reasonable best efforts to obtain such consents, approvals, authorizations and instruments which may reasonably be requested by Parent or Merger Sub to permit the consummation of the TransactionsDebt Financing, including, but not limited to, collateral arrangements, including obtaining payoff letters, releases, terminations, landlord waivers and access agreements, waivers, consents, estoppels and approvals as may be required in connection therewith, (ixii) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable best efforts to ensure that the Parent and the Surviving Company Financing Sources benefit from the existing lending relationships of the Group Companies Company and its Subsidiaries, (xiii) using its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and Merger Sub at the Effective Time, and (xiv) as of the Effective Time, taking all corporate actions necessary to authorize the consummation of the Financing and to permit the proceeds thereof to be made available to the Surviving Corporation immediately upon the Effective Time; provided that, notwithstanding anything to the contrary contained in this Agreement (including this Section 5.07), nothing in this Agreement shall require any cooperation to the extent requested by Parent. Neither that it would require the Company nor or any of its Subsidiaries shall (x) be required or representatives, as applicable, to waive or amend any terms of this Agreement or agree to pay any commitment or similar fee prior to the Effective Time other fees or (y) be required to commit to taking reimburse any action that is not contingent upon the Closing (including entry into expenses or incur any agreement) or would be effective liability prior to the Effective Time. If All non-public information or other confidential information provided pursuant to this Agreement is terminated Section 5.07 shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and its terms prior Affiliates shall be permitted to disclose such information to potential syndicate members during syndication, subject to customary confidentiality undertakings by such potential syndicate members. The Company hereby consents to the occurrence use of its and its Subsidiaries’ logos in connection with the Effective TimeDebt Financing, provided that such logos are used in a manner that is not intended to harm or disparage the Company, its Subsidiaries or their marks and on such other customary terms and conditions as the Company may reasonably impose.
(f) Parent shall shall, if the Closing has not occurred, promptly upon request by the Company or promptly after termination of this Agreement (other than a termination pursuant to Section 7.01(c) or Section 7.01(d)(ii)), reimburse the Company for any all documented reasonable and documented out-of-pocket expenses and costs incurred by it in connection with the Company’s compliance with performance by the Company or other Persons obligated under this Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s 5.07 of its obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Mergerthis Section 5.07.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Cole Kenneth Productions Inc), Merger Agreement (Cole Kenneth Productions Inc)
Financing. (a) Subject to the terms Each of Parent, First Merger Sub and conditions of this Agreement, each of Parent and Second Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary or advisable to arrange and obtain the Financing on the terms and conditions described in or contemplated by the Financing Commitments prior to when the conditions to the Mergers set forth in Article VIII (other than those conditions that by their terms must be satisfied at the Closing) are satisfied, including using reasonable best efforts to (i) maintain in effect the Financing Commitments; (ii) satisfy on a timely basis all conditions and covenants applicable to Parent, First Merger Sub and Second Merger Sub in the Financing Commitments and otherwise comply with its obligations in each case thereunder; (iii) enter into definitive agreements with respect to the Financing Commitments on the terms and conditions (including the “market flex” provisions) contemplated thereby; (iv) in the event that all conditions in the Financing Commitments have been satisfied, cause the Persons providing Financing under the Financing Commitments to fund the Financing and consummate the Equity Financing at contemplated by such Financing Commitments on or prior to the Effective Time.
date the Closing is required to occur pursuant to Section 2.02; and (bv) Parent shall give enforce its rights under the Company prompt notice Financing Commitments, except, in the case of clauses (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter through (v) above, to the extent (and solely to the extent) Parent or termination of any New Sponsor Equity Commitment Letter by any party thereto one or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each more of its Subsidiaries and each has issued in one or more offerings any debt or equity securities in lieu of their respective Representatives to provide, all cooperation as may be reasonably required with respect the Financing on or prior to the Equity Financing Closing Date or any debt financing or indebtedness otherwise will have sufficient cash at the Closing, in each case in an amount such that Parent, First Merger Sub, Second Merger Sub, the Surviving Corporation and the Surviving Entity will be able to satisfy all of the Company payment obligations of Parent, First Merger Sub, Second Merger Sub, the Surviving Corporation and the Surviving Entity contemplated hereunder in connection with the consummation of Closing. Notwithstanding the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Companyforegoing, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the no event shall Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to pursue litigation against the Effective Time or Financing Sources in respect of this clause (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreementa) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)otherwise.
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 3 contracts
Sources: Merger Agreement (Grail, LLC), Merger Agreement (Grail, LLC), Merger Agreement (Illumina, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to consummate the Equity Financing at or prior to the Effective Time.
(b) Parent shall give the The Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provideshall, and shall cause each of its Subsidiaries to, and each of their respective Representatives shall use its commercially reasonable efforts to providecause its and its Subsidiaries’ officers, directors, employees, agents, and other representatives (collectively, “Representatives”) to, provide all cooperation as may be that is reasonably required with respect requested by Parent to assist Parent and the Equity Financing or Merger Subs in the arrangement of any third party debt financing (including any debt financing capital markets financing) for the purpose of funding the payment of the Aggregate Cash Amount and the repayment, redemption, purchase, defeasance or indebtedness discharge of any outstanding Indebtedness for borrowed money of the Company and its Subsidiaries (including pursuant to a Debt Offer, the Existing Credit Facility Terminations or a CMBS Transaction)), and the payment of fees and expenses incurred in connection with therewith (the consummation of the Transactions“Financing”), including but not limited to (i) the Company obtaining approval of (A) an increase in the size of the Company Board as promptly as reasonably practicable, furnishing to such number as is requested in writing by Parent and (B) the election Financing Sources such financial and other information relating to the Company Board customary or reasonably necessary for the completion of such Financing to the extent reasonably requested by Parent to assist in preparation of customary offering or information documents to be used for the completion of the individuals who will serve as directors of the Surviving Company, in each case of clauses Financing (A) and (B“Financing Offering Materials”), effective as of immediately prior to the Effective Time, and ; (ii) the Company using commercially reasonable efforts to ensure that cooperate with the marketing efforts of Parent and the Surviving Company benefit from Financing Sources, including using commercially reasonable efforts to participate in a reasonable number of requested meetings with the existing lending relationships parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the Financing and the Company’s senior management and Representatives, presentations, roadshows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Financing; (iii) delivering (A) audited consolidated balance sheets and related audited statements of comprehensive income (loss), stockholders’ equity and cash flows of the Group Companies Company (the “Audited Annual Financials”) for each of the three most recently ended fiscal years that have ended at least 90 days (or 75 days in the case of any fiscal year ended after December 31, 2013) prior to the Closing Date (and the audit reports for such financial statements shall not be subject to any “going concern” qualifications) and (B) unaudited consolidated balance sheets and related unaudited statements of comprehensive income (loss) and cash flows of the Company (the “Quarterly Financials”) for each subsequent interim quarterly period that has ended at least 40 days prior to the Closing Date, in the case of each of clauses (iii)(A) and (iii)(B), meeting the requirements of Regulation S-X under the Exchange Act as would be applicable to an Annual Report on Form 10-K or a Quarterly Report on Form 10-Q, as applicable (it being further agreed that (x) the Company shall deliver to Parent the consolidated financial statements of the Company described in this clause (iii) in respect of any such fiscal period (other than Audited Annual Financials for its 2011 and 2012 fiscal years) no later than the date upon which the corresponding consolidated financial statements of the Operating Subsidiary for such fiscal period are filed with the SEC and (y) the Company shall deliver to Parent the Audited Annual Financials for its 2011 and 2012 fiscal years no later than the date upon which it delivers the Audited Annual Financials for its 2013 fiscal year); (iv) using commercially reasonable efforts to cause the Company’s independent accountants to provide reasonable assistance to Parent consistent with their customary practice (including to consent to the use of their audit reports on the consolidated financial statements of the Company and its Subsidiaries in any materials relating to the Financing or in connection with any filings made with the SEC or pursuant to the Securities Act or the Exchange Act, and to provide any “comfort letters” necessary and reasonably requested by Parent in connection with any debt capital markets transaction comprising a part of the Financing, in each case, on customary terms and consistent with their customary practice); and (v) to the extent requested by Parent. Neither that the Company nor or any of its Subsidiaries shall are to be party to the Financing following the occurrence of the Effective Time, (x) using commercially reasonable efforts to obtain customary legal opinions and executing and delivering customary closing certificates and documents at the Closing as may be reasonably requested by Parent in connection with the Financing, (y) using commercially reasonable efforts to facilitate the execution and delivery at the Closing of definitive documents (including loan agreements, customary guarantee documentation (if applicable) and other applicable loan documents) related to the Financing, and (z) as long as such information is requested by the Financing Sources at least ten (10) Business Days prior to the Closing Date, providing to the Financing Sources, at least five (5) Business Days prior to the Closing Date, all customary and reasonable documentation and other information required by regulatory authorities with respect to the Company under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act of 2001, as amended; provided, however, that nothing in this Section 5.14 shall require such cooperation to the extent it would (A) unreasonably disrupt or interfere with the business or operations of the Company or any of its Subsidiaries or the conduct thereof or (B) require the Company or any of its Subsidiaries to pay any commitment fees, incur or similar fee reimburse any costs or expenses, or make any payment in connection with the Financing, prior to the occurrence of the Effective Time (except to the extent Parent promptly reimburses (in the case of ordinary course out-of-pocket costs and expenses) or provides the funding (yin all other cases) be required to commit to taking the Company or such Subsidiary therefor), or incur any action liability in connection with the Financing that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, or (C) subject to Section 5.15 below, require the Company or any of its Subsidiaries to enter into any instrument or agreement, or agree to any change or modification to any instrument or agreement, that is effective prior to the occurrence of the Effective Time or that would be effective if the Effective Time does not occur. Without limiting the foregoing proviso, Parent shall agrees, promptly upon request, to reimburse the Company and its Subsidiaries for any all of their reasonable and documented out-of-pocket costs incurred by it costs, fees and expenses (including fees and disbursements of counsel) in connection with the Company’s compliance with Section 6.07(c)(i) through Financing promptly following the incurrence thereof (limited, in the case of any costs, fees and expenses for preparing the consolidated financial statements of the Company described in clause (iii) of the preceding sentence, to the incremental costs, fees and expenses for preparing such financial statements in excess of the costs, fees and expenses of preparing the corresponding financial statements of the Operating Subsidiary).
(d) The Company . Parent shall use reasonable best efforts to obtainindemnify and hold harmless the Company, execute the Significant Stockholders, its and deliver such documents or instruments as may be required for the Surviving Company’s due assumption oftheir respective Affiliates, and succession toits and their respective Representatives from and against any and all liabilities, obligations, losses, damages, claims, costs, expenses, awards, judgments and penalties of any type actually suffered or incurred by any of them in connection with any action taken, or cooperation provided, by the Company or its Subsidiaries or any of their respective Representatives at the request of Parent pursuant to this Section 5.14 and/or the provision of information utilized in connection therewith (other than information provided in writing by the Company or its Subsidiaries specifically for use in connection therewith); in each case, except to the extent that any such obligations, losses, damages, claims, costs, expenses, awards, judgments and penalties, fees, costs or other liabilities are suffered or incurred as a result of the Company’s obligations under the 2022 Indenture and the Facility or its Representatives’ gross negligence, bad faith, willful misconduct or material breach of this Agreement, including (i) customary closing certificates as applicable. The Company hereby consents to the use of its and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement its Subsidiaries’ logos in connection with the consummation Financing, provided such logos are used solely in a customary manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Transactions, including Company or any of its Subsidiaries and on such other customary terms and conditions as the Company shall reasonably impose. Parent and Merger Sub acknowledge and (ii) customary legal opinions as are required by agree that the 2022 Indenture or the Facility Agreement in connection with the consummation obtaining of the TransactionsFinancing, including or any alternative financing, is not a condition to the MergerClosing and reaffirm their obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Financing or any alternative financing, subject to fulfillment or waiver of the conditions set forth in Article VI. Notwithstanding anything to the contrary provided herein or in the Confidentiality Agreement, Parent shall be permitted to share all information subject to such agreements with its potential financing sources, subject to customary confidentiality undertakings by such potential financing sources with respect thereto.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Sysco Corp), Merger Agreement (Us Foods, Inc.)
Financing. (a) Subject The Purchaser shall use its best efforts to obtain the Financing on the terms and conditions described in or contemplated by the Financing Commitments and shall not agree to any amendment or modification to, or any waiver of this Agreementany provision or remedy under, each the Financing Commitments without the prior written consent of Parent and Merger Sub shall use its reasonable best efforts the Seller if such amendments, modifications or waivers would or would reasonably be expected to (i) reduce the aggregate amount of the Financing below the amount required to consummate the Equity Financing at Contemplated Transactions or prior amend or modify any conditions in a manner adverse to the Effective TimeSeller, (ii) impose new or additional conditions to the receipt of the Financing, (iii) prevent or materially delay the Closing Date, or (iv) adversely impact in any material respect the ability of Purchaser to enforce its rights against the other parties to any of the Financing Commitments or (v) adversely impact the Contemplated Transactions in any manner.
(b) Parent Without limiting the generality of Section 5.8(a), the Purchaser shall give the Company prompt notice use best efforts to (i) upon becoming aware maintain in effect each of any breach the Financing Commitments, (ii) satisfy all conditions and covenants applicable to the Purchaser in the Financing Commitments on or prior to the Closing and otherwise comply with its obligations thereunder, (iii) enforce its rights under the Financing Commitments and (iv) in the event that all conditions in the Financing Commitments, the Subscription Receipt Agreement (as defined in the Standby Purchase Agreement) and the Subscription Receipt Indenture (as defined in the Debt Subscription Agreement) have been satisfied, cause the persons providing the Financing to fund on the Closing Date the Financing required to consummate the transactions contemplated by this Agreement.
(c) The Purchaser shall keep the Seller promptly informed of the status of its efforts to consummate the Financing and shall give Seller prompt written notice: (i) of any material provision of breach or material default (or any New Sponsor Equity Commitment Letter event or termination of circumstance that, with or without notice, lapse or time or both, would reasonably be expected to give rise to any New Sponsor Equity Commitment Letter material breach or material default) by any party thereto to the Financing Commitments or definitive document related to the Financing of which Purchaser becomes aware; (ii) upon of the receipt of any written notice or other written communication from any party to a New Sponsor Equity Commitment Letter the Financing Commitments with respect to any threatened breach breach, default, termination or repudiation by any party to the Financing Commitments or any definitive document related to the Financing; and (iii) if the Purchaser becomes aware that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing; provided that Purchaser need not provide any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letterinformation that is privileged.
(cd) Each party hereto In the event any portion of the Financing becomes unavailable on the terms and conditions described in or contemplated by the Financing Commitments for any reason whatsoever, as promptly as reasonably practicable following the occurrence of such event, the Purchaser shall provideuse best efforts to obtain alternative financing from alternative sources on terms and conditions substantially not less favourable, taken as a whole, to Purchaser (in the reasonable judgment of Purchaser) than those in the unavailable Financing Commitments and shall cause each of its Subsidiaries that is sufficient, when taken together with the Purchaser’s cash on hand and each of their respective Representatives the Financing Commitments that remains available at the time to provide, all cooperation as may be reasonably required with respect to pay the Equity Financing or any debt financing or indebtedness of Purchase Price and the Company fees and expenses payable by the Purchaser in connection with the consummation Contemplated Transactions (the “Alternative Financing”). The Purchaser shall keep Seller promptly informed on a reasonably current basis of the Transactionsstatus of its efforts to arrange any Alternative Financing. For the purposes of this Agreement, “Financing Commitments” shall be deemed to include any commitment letter (or similar agreement) with respect to any Alternative Financing arranged in compliance herewith.
(e) Prior to the Closing, the Seller shall use commercially reasonable efforts and shall cause the ELN Companies to use commercially reasonable efforts, and shall use its commercially reasonable efforts to cause its respective representatives to, provide to the Purchaser, at the Purchaser’s sole expense in respect of the Seller’s out-of-pocket costs, all reasonable cooperation requested by the Purchaser that is required in connection with the Financing and any Alternative Financing, including (i) furnishing the Company obtaining approval of Purchaser and its financing sources with (A1) an increase in the size copies of the Company Board Financial Statements, together with, to such number as is requested in writing by Parent the extent applicable, the report of the Seller’s auditors with respect thereto, and (B2) all information relating to the election ELN Companies and the Business, including the financial statements required by Applicable Laws for inclusion in any prospectus filed by PNCC with securities regulatory authorities in Canada in connection with the Financing, it being understood and agreed by the Parties that if any financial statements, other than the financial statements prepared by the Seller prior to the date hereof, are required to be prepared pursuant to Applicable Laws or otherwise in connection with the Financing, all out-of-pocket fees, costs and expenses relating to the preparation and delivery of such financial statements shall be borne exclusively by the Purchaser (information required to be delivered pursuant to this clause (i) being referred to as the “Required Information”); (ii) participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers, agents or underwriters for, and prospective lenders and investors of or in, the Financing and senior management and representatives, with appropriate seniority and expertise, of the Business, including the chief executive officer, chief financial officer and other senior executive officers of each of the ELN Companies), due diligence sessions, (iii) providing monthly income statements down to the EBITDA level (internal flash statement of income) for the Business and monthly accounts receivable balance of the Business, (iv) assisting with the preparation of customary materials for bank information memoranda, offering documents, prospectuses, private placement memoranda and similar documents required in connection with the Financing (including the delivery of any consents of accountants for use of their reports in any materials relating to the Financing and the delivery of one or more customary representation letters), (v) using commercially reasonable effort to facilitate the pledging of collateral in connection with the Financing, including executing and delivering any documents as may be reasonably requested by the Purchaser, (vi) providing access and information reasonably requested by the Purchaser to allow the Purchaser to undertake inventory appraisals, field audits, environmental assessments and obtain surveys and title insurance, (vii) providing to the sources of the Financing all documentation and other information required by regulatory authorities with respect to the Company Board under applicable “know your customer” and anti-money laundering rules and regulations, including the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada)), (viii) causing the taking of corporate actions (subject to the occurrence of the individuals who will serve as directors Closing) by the ELN Companies reasonably necessary to permit the completion of the Surviving CompanyFinancing, in each case of clauses (Aix) facilitating the execution and delivery at the Closing (B), effective as of immediately prior subject to the Effective Timeoccurrence of the Closing) of definitive documents related to the Financing on the terms contemplated by the Financing Commitments, and (iix) the Company using commercially reasonable efforts to ensure cause accountants and legal counsel to provide their reasonable cooperation and assistance, including participating in a reasonable number of due diligence sessions and drafting sessions; provided, however, that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies nothing herein shall require such cooperation to the extent requested by Parentit would interfere unreasonably with the operation of the Business; provided, further, that the Seller and the ELN Companies shall not be required to take any action described in this Section 5.8 that would become legally binding on any of them prior to the Closing. Neither the Company Seller nor any of its Subsidiaries the ELN Companies shall (x) be required to take any action that would subject any of them to any liability, to bear any third-party cost or expense or to pay any commitment or other similar fee prior or make any other payment (other than reasonable out-of-pocket costs or any such costs, expenses, fees or payments to be reimbursed by the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreementPurchaser) or would be incur any other liability or provide or agree to provide any indemnity in connection with the Financing or any of the foregoing, which is effective prior to the Effective TimeClosing. If this Agreement is terminated The Seller will ensure that none of the Required Information contains any misrepresentations (as defined in the Securities Act (Ontario)) regarding the Seller, the ELN Companies or the Business. The Purchaser shall indemnify and hold harmless the Seller and the ELN Companies and their representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement or completion of the Financing (including any action taken in accordance with its terms prior to this Section 5.8) and any information utilized in connection therewith (other than the occurrence Required Information) except in the event such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments or penalties arose out of or result from the wilful misconduct, intentional misrepresentation or gross negligence of the Effective TimeSeller, Parent shall its Affiliates or any of their respective officers, employees or representatives. The Purchaser shall, promptly upon request by the Seller, reimburse the Company Seller and the ELN Companies for any all documented and reasonable and documented out-of-pocket costs incurred by it the Seller and the ELN Companies in connection with this Section 5.8(e). The Seller hereby consents to the reasonable use of the ELN Companies’ logos in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)Financing, provided that such logos are used solely in a manner that is not intended or reasonably likely to harm or disparage the ELN Companies in any respect.
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 3 contracts
Sources: Purchase Agreement (Quebecor Media Inc), Purchase Agreement (Postmedia Network Canada Corp.), Purchase Agreement (Postmedia Network Canada Corp.)
Financing. (a) Subject 2.18.1 Notwithstanding anything to the terms contrary contained in this Agreement, Company will have the right at such time or times as Company desires and conditions without Lessor’s consent, to hypothecate Company’s interest in all or part of this Agreement, each the Premises and the Facilities with one or more Leasehold Mortgages. Such Leasehold Mortgages may contain such terms and conditions as are acceptable to Company and Company will have the right, without the consent of Parent Lessor, at any time during the term hereof to execute and Merger Sub deliver to any or all of its Leasehold Mortgagees any documents which will operate as collateral security for any loan or loans made, even if such document or documents result in a form or type of conveyance or assignment of the leasehold interest demised hereunder. It is hereby agreed that Company or any such Leasehold Mortgagees will have the right to immediately record such document or document(s) with an appropriate public official or officials. Company agrees that copies of all such documents of conveyance or assignment as contained in this Section 2.18 will be provided to the LDR forthwith. ▇▇▇▇▇▇ agrees to cooperate in executing any documents reasonably requested of Lessor by Company or the Leasehold Mortgagee in connection with any such Leasehold Mortgage; PROVIDED, HOWEVER, UNDER NO CIRCUMSTANCES SHALL LESSOR BE OBLIGATED TO SUBORDINATE ITS FEE INTEREST IN THE PREMISES TO ANY LEASEHOLD MORTGAGE, AND, NOTWITHSTANDING ANY TERM OR PROVISION OF ANY SUCH LEASEHOLD MORTGAGE OR THIS AGREEMENT TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL ANY SUCH LEASEHOLD MORTGAGE CONSTITUTE AN INDEBTEDNESS OR OBLIGATION OF LESSOR NOR SHALL LESSOR BE LIABLE IN ANY WAY FOR THE PAYMENT OF ANY PORTION OF THE INDEBTEDNESS EVIDENCED BY SUCH LEASEHOLD MORTGAGE OR FOR THE PAYMENT OR PERFORMANCE OF ANY OTHER OBLIGATION THEREUNDER OR SECURED THEREBY.
2.18.2 Lessor will deliver to any such Leasehold Mortgagee written notice of any default of Company under the terms of this Agreement and said notice will specify the nature of the default. Before terminating this Agreement, Lessor will allow such Leasehold Mortgagee to cure or commence to cure any default of Company in accordance with the provisions of this Agreement. The time period to cure any default of Company will commence when said notice is delivered to Leasehold Mortgagee and Leasehold Mortgagee shall use have the same lengths of time to cure the specified default as are permitted Company in Section 2.14. In the event Company fails to timely cure a default after receipt of written notice and expiration of any applicable cure period, ▇▇▇▇▇▇ agrees to provide any Leasehold Mortgagee with a second written notice and provide such Leasehold Mortgagee with an additional thirty (30) day cure period. Lessor will not have the right to exercise any remedies under this Agreement so long as a Leasehold Mortgagee is diligently prosecuting to complete a cure of any default. If such default is of a nature which is incapable of being cured by Leasehold Mortgagee, Lessor agrees not to exercise its reasonable best efforts remedies arising from such default if (i) Leasehold Mortgagee notifies Lessor in writing within such thirty (30) day cure period that Leasehold Mortgagee intends to consummate foreclose its mortgage and Leasehold Mortgagee commences and diligently pursues such foreclosure; and (ii) Leasehold Mortgagee makes all payments due by Company under this Agreement through the Equity Financing date of foreclosure.
2.18.3 Any default by the Company in the payment of money as required under the terms of this Agreement may be cured by the Leasehold Mortgagee in accordance with the terms of Sections 2.14 and 2.18.2 of this Agreement, and Lessor will accept any such payment or cure from such Leasehold Mortgagee during the term of the Leasehold Mortgage.
2.18.3.1 Should the Company default under the terms of this Agreement and should the default be such that it cannot be cured by the payment of money, Lessor will accept payments of rent from such Leasehold Mortgagee and this Agreement will not terminate, but will remain in full force and effect, pending Leasehold Mortgagee’s cure of such default within the time periods described herein or resort to foreclosure or sale proceedings under its deed of trust or other security instruments.
2.18.4 If any default has been cured by a Leasehold Mortgagee or Assignee, Lessor agrees that upon completion of any foreclosure proceedings or sale under the deed of trust or other security instrument securing the loan, or upon delivery of a deed in lieu of foreclosure, the Leasehold Mortgagee or purchaser at such sale or any heir, successor, or assign of Leasehold Mortgagee (Assignee) subsequent to such sale will be recognized by Lessor as the lessee under the terms of this Agreement for all purposes for the remaining term hereof. The leasehold interest of the Leasehold Mortgagee or such Assignee will not be adversely affected or terminated by reason of any nonmonetary default occurring prior to the Effective Timecompletion of such proceedings or sale, provided such default has been promptly remedied (to the extent it is capable of being remedied by Leasehold Mortgagee), or if such default requires possession to cure, provided such Leasehold Mortgagee, Assignee or purchaser promptly commences to cure upon taking possession of the Premises.
2.18.5 Such Leasehold Mortgagee will not become personally liable under the terms and obligations of this Agreement unless and until it assumes the obligations and is recognized by Lessor as lessee under this Agreement and will be liable only so long as such Leasehold Mortgagee or Assignee maintains ownership of the leasehold interest or estate and recourse to such Leasehold Mortgagee or Assignee shall be limited solely to Leasehold Mortgagee’s or Assignee’s interest in the Premises.
2.18.6 At any time during the term of this Lease, within ten (10) days after a written request by the Company or any Leasehold Mortgagee, Lessor, through Lessor’s Designated Representative, will execute, acknowledge and deliver to the Company or such person or entity as the Company designates, a certificate stating:
(a) that this Agreement is the only Agreement between Lessor and Company concerning the Premises and is unmodified and in full force and effect in accordance with its terms (or if there have been modifications, that this Agreement is in force and effect as modified, and identifying the modification agreements, or if this Agreement is not in full force and effect, that it is not);
(b) Parent shall give the Company prompt notice (i) upon becoming aware commencement and expiration dates of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon this Agreement and the receipt of any written notice from any party date to a New Sponsor Equity Commitment Letter with respect which rental has been paid to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.Lessor under this Agreement;
(c) Each party hereto shall providewhether or not, to the knowledge of the Lessor, there is an existing default by Company in the payment of Rent or any other sum of money under this Agreement, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required whether or not there is any other existing default by either party under this Agreement with respect to which a notice of default has been served, and if there is such a default specifying its nature and extent;
(d) whether or not, to the Equity Financing knowledge of Lessor, there are any set-offs, defenses or any debt financing or indebtedness counter-claims against enforcement of the obligations to be performed by Lessor or Company in connection with under this Agreement; and,
(e) such other reasonable information relating to this Agreement that a Leasehold Mortgagee or assignee may request.
2.18.7 All notices of default required to be delivered to a Leasehold Mortgagee under this Agreement will be sent to any Leasehold Mortgagee by overnight courier service or certified mail, return receipt requested. No such notice shall be valid or effective as against the consummation Leasehold Mortgagee until and unless actually received by the Leasehold Mortgagee as evidenced by the courier service’s delivery records or the return receipt.
2.18.8 In the event this Agreement is terminated for any reason prior to the end of the Transactionsterm (it being the intent that the Agreement will remain in full force and effect if Leasehold Mortgagee performs), including Lessor shall enter into a new Agreement with Leasehold Mortgagee holding a first priority interest covering the Premises, provided that the Leasehold Mortgagee (i) the Company obtaining approval of requests such new Agreement by written notice to Lessor within sixty (A60) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Timedays after termination, and (ii) cures all prior defaults of Company that are capable of being cured by Leasehold Mortgagee. The new Agreement shall be for the remainder of the term, effective at the date of such termination, at the same rent and on the same covenants, agreements, conditions, provisions, restrictions and limitations contained in this Agreement. The new Agreement shall have the same title priority as this Agreement and shall be subject only to the exceptions to title having priority over this Agreement or such additional exceptions to which such Leasehold Mortgagee has consented in writing. In the event the Lessor and such Leasehold Mortgagee enter into any such new Agreement, title to all the Facilities located upon the Premises as of the date of such new Agreement shall automatically vest in such Leasehold Mortgagee. If requested by such Leasehold Mortgagee, ▇▇▇▇▇▇ agrees to execute and deliver to Leasehold Mortgagee within 10 days after request therefore, a quitclaim deed in recordable form conveying title to such Facilities to such Leasehold Mortgagee. ▇▇▇▇▇▇ also agrees to assign to such Leasehold Mortgagee all Subleases with Tenants who’s Subleases attorn to Lessor upon the termination of this Agreement.
2.18.9 Lessor shall cooperate in amending this Agreement from time to time to add any provision which may reasonably be requested by any Leasehold Mortgagee or proposed lender for the purpose of implementing the mortgagee protection provisions contained in this Agreement and allowing such Leasehold Mortgagee reasonable means to protect or preserve the lien of its loan and the value of its security. Lessor agrees to execute and deliver (and to acknowledge if necessary for recording purposes) any agreement necessary to effect any such amendment; provided, however, that any such amendment shall not in any way affect or change the term of this Agreement or the Rent or other amounts payable to Lessor under this Agreement, subordinate the fee interest of Lessor in the real property underlying the Premises, nor otherwise in any material respect adversely affect any rights of Lessor under this Agreement.
2.18.10 The bankruptcy or insolvency of Company using will not operate or permit the Lessor to terminate this Agreement as long as all Rent or other monetary payments required to be paid by Company continue to be paid and other required obligations are performed in accordance with the terms of this Agreement.
2.18.11 To the extent any of the terms of this Agreement are inconsistent with the terms of this Section regarding mortgagee protection provisions, the mortgagee protection provisions will control.
2.18.12 Every Leasehold Mortgage shall contain a provision that copies of all notices of default by Company thereunder must be sent to Lessor. In the event of any default by Company under any Leasehold Mortgage, the Lessor reserves the right to make any payments due to the Leasehold Mortgagee before the Leasehold Mortgagee resorts to any foreclosure or sale proceedings under its deed of trust or other security instrument.
2.18.12.1 Following any foreclosure or deed in lieu of foreclosure the leasehold estate created by this Agreement and the Facilities may be transferred or assigned as provided in Section 2.1.2.
2.18.13 Any mortgage placed by the Lessor on the fee title to the Premises shall be subordinate to this Agreement (and any replacement to this Agreement), any separate lease entered into in accordance with Section 4.8 and all Subleases.
2.18.14 Prior to any termination of this Agreement by Lessor, any Leasehold Mortgagee shall be allowed sufficient time to complete any foreclosure action, including time for delays due to official restraint (including by law, process or injunction issued by a court), so long as such Leasehold Mortgagee is making payments required by this Agreement which can be reasonably determined prior to acquiring the Company’s interest under this Agreement. Leasehold Mortgagee shall have the right to terminate foreclosure proceedings at any time if Company has cured all defaults under any loan from Leasehold Mortgagee. However, no such termination of foreclosure proceedings shall prevent Lessor from pursuing, or continuing to pursue, its rights and remedies under this Agreement against Company for any uncured defaults under this Agreement.
2.18.15 So long as any Leasehold Mortgage is in effect, there shall be no merger of the leasehold estate created by this Agreement into the fee simple estate in the Premises without the prior written consent of the Leasehold Mortgagee.
2.18.16 Any Leasehold Mortgagee shall have the right to participate in any settlement or adjustment of losses under insurance policies maintained by Company under this Agreement. Such Leasehold Mortgagee shall be named as a loss payee or additional insured, as applicable, in accordance with any loan documents executed by Company, under the insurance policies required under this Agreement. Company shall use commercially reasonable efforts to ensure obtain provisions in Leasehold Mortgages providing that any proceeds of insurance shall first be used for the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If purposes provided for in this Agreement before any portion thereof is terminated in accordance with its terms prior applied to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for repay any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)indebtedness under such Leasehold Mortgage.
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 3 contracts
Sources: Lease Agreement, Lease Agreement, Lease Agreement
Financing. (a) Subject The Parent Group collectively will have, as of the Closing Date, sufficient cash and cash equivalents, available lines of credit or other sources of immediately available funds to consummate the Merger and the other transactions contemplated by this Agreement that require payment on the Closing Date. Parent has delivered to the Company a true and complete copy of the executed Debt Commitment Letter (other than the redacted portions of any fee letters, which redactions shall be limited to pricing, fee amounts, price flex and other economic terms and conditions in no case shall such redactions relate to terms that would be reasonably likely to adversely affect the conditionality, enforceability, availability, termination or aggregate amount of the Debt Financing). The Debt Commitment Letter has not been amended or modified in any manner prior to the execution and delivery of this Agreement. Neither Parent nor any of its Affiliates has entered into any agreement, side letter or other commitment or arrangement relating to the financing of the transactions contemplated by this Agreement that could affect the availability of the Debt Financing or the timing of the Closing, other than as set forth in the Debt Commitment Letter and the fee letters related thereto. The proceeds of the Debt Financing (both before and after giving effect to the exercise of any or all “market flex” provisions related thereto), together with any other sources of funds immediately available to Parent or Merger Sub at Closing (including cash and cash equivalents and available lines of credit held by the Company (assuming the accuracy of the representations and warranties of the Company pursuant to this Agreement and the performance by the Company of its obligations hereunder) and the proceeds of the loans under existing revolving credit facilities of Parent), will be sufficient to consummate the transactions contemplated hereby. As of the execution and delivery of this Agreement, each the commitments contained in the Debt Commitment Letter have not been withdrawn or rescinded in any respect. As of the execution and delivery of this Agreement, the Debt Commitment Letter is in full force and effect and represents a valid, binding and enforceable obligation of the Debt Commitment Parties, to provide the financing contemplated thereby subject only to the satisfaction or waiver of the Financing Conditions and, subject to the qualification that such enforceability may be limited by bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting rights of creditors. Parent has fully paid (or caused to be paid) any and all commitment fees and other amounts that are due and payable on or prior to the date of this Agreement in connection with the Debt Financing. As of the execution and delivery of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default on the part of Parent under any term of the Debt Commitment Letter. As of the execution and delivery of this Agreement, assuming the conditions precedent set forth in Section 6.1 and Section 6.2 are satisfied (other than those that by their nature are to be satisfied at the Closing), Parent has no reason to believe that (i) any of the Financing Conditions will not be satisfied or (ii) the Debt Financing will not be made available to Parent on the Closing Date. There are no conditions precedent related to the funding of the full amount of the Debt Financing other than the Financing Conditions contained in the Debt Commitment Letter. Parent understands and acknowledges that under the terms of this Agreement, the obligations of Parent and Merger Sub shall use its reasonable best efforts to consummate the Equity Financing at Merger are not in any way contingent upon or prior otherwise subject to the Effective Time.
(b) consummation by Parent shall give the Company prompt notice (i) upon becoming aware or Merger Sub of any breach financing arrangements, the obtaining by Parent or Merger Sub of any material financing or the availability, grant, provision or extension of any New Sponsor Equity Commitment Letter financing to Parent or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment LetterMerger Sub.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 3 contracts
Sources: Merger Agreement (Jetblue Airways Corp), Merger Agreement (Spirit Airlines, Inc.), Merger Agreement (Jetblue Airways Corp)
Financing. (a) Subject Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the terms and conditions of this AgreementClosing Date, each of Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to consummate cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Equity Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), including using reasonable best efforts to (i) provide information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at or least 40 days prior to the Effective Time.
(b) Parent shall give Closing Date and information regarding the Company prompt notice (i) upon becoming aware business, operations and financial projections of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or the Company), (ii) upon participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the receipt rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of the Financing (including consenting to the use of the Company’s and its Subsidiaries’ logos; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any material provision of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders and containing a representation to the Financing Sources that the public side versions of such New Sponsor Equity Commitment Letter documents, if any, do not include material non-public information about the Company or threatened termination its Affiliates, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of any such New Sponsor Equity Commitment Letterthe Company and its Subsidiaries.
(c) Each party hereto Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall provide, and shall cause each (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing (or any debt alternative financing or indebtedness of the Company that Parent may raise in connection with the consummation of the Transactionstransactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or other similar fee prior fee, (iii) have any liability or any obligation under any credit agreement or any related document or any other agreement or document related to the Effective Time Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) or (yiv) be required to commit to taking incur any action other liability in connection with the Financing (or any alternative financing that is not contingent Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective TimeCompany, Parent shall promptly reimburse the Company for any all reasonable and documented out-of-pocket costs and expenses actually incurred by it the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s compliance Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with Section 6.07(c)(i) through the transactions contemplated by this Agreement), and (iii) shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) The In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall use reasonable best efforts comply with its covenants in Section 6.11(b) with respect to obtainthe Commitment Letter as so amended, execute replaced, supplemented or otherwise modified and deliver with respect to such documents other debt or instruments equity financing to the same extent that the Company would have been obligated to comply with respect to the Financing, provided, that the Commitment Letter as may be required for so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the Surviving Company’s due assumption of, funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested conditions contemplated by the trustee Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the 2022 Notes Commitment Letter or as may be required under the Facility Agreement in connection with Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Transactions, including the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(iie) customary legal opinions as are required All non-public or otherwise confidential information regarding the Company obtained by the 2022 Indenture Parent or the Facility Agreement its Representatives pursuant to this Section 6.11 shall be kept confidential in connection accordance with the consummation of the Transactions, including the MergerConfidentiality Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Rock-Tenn CO), Merger Agreement (SMURFIT-STONE CONTAINER Corp), Merger Agreement (Rock-Tenn CO)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its commercially reasonable best efforts to consummate take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable or proper to obtain the proceeds of the Equity Financing at contemplated by the Equity Commitment Letter on or prior to the Effective Time.
Closing Date on the terms and conditions described in the Equity Commitment Letter, including (a) maintaining in full force and effect the Equity Commitment Letter in accordance with the terms thereof and complying with its obligations thereunder and (b) satisfying on a timely basis all conditions to the funding of the Equity Financing set forth in the Equity Commitment Letter, if any, that are within Parent’s or Merger Sub’s control, in each case, no later than at the Closing (excluding conditions that, by their terms, cannot be satisfied until the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of such conditions at the Closing). In the event that all conditions contained in the Equity Commitment Letter have been satisfied, Parent and Merger Sub shall use commercially reasonable efforts to cause Parent Sponsor to comply with its obligations thereunder, including to fund the Equity Financing. Parent and Merger Sub shall keep the Company informed in reasonable detail of the status of its efforts to arrange the Equity Financing and any other financing upon the written request of the Company and shall give the Company prompt written notice of (i) upon becoming aware of any breach by any party to the Equity Commitment Letter of any material provision of any New Sponsor Equity Commitment Letter which Parent or termination of any New Sponsor Equity Commitment Letter by any party thereto Merger Sub has become aware or (ii) upon Parent’s or Merger Sub’s good faith belief, for any reason, that it may no longer be able to obtain all or any portion of the receipt of any written notice from any party to a New Sponsor Equity Financing contemplated by the Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letteron the terms and conditions described therein.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 3 contracts
Sources: Merger Agreement (Vapotherm Inc), Merger Agreement (Vapotherm Inc), Merger Agreement (Army Joseph)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to consummate take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable or proper to obtain the Equity proceeds of the Financing at on the terms and conditions described in the Commitment Letter (or the proceeds of permanent Financing in lieu thereof) (taking into account any “flex provisions” set forth in the related fee letters) on or prior to the Effective Timedate upon which the Merger is required to be consummated pursuant to the terms of this Agreement, including by: (i) maintaining in effect the Commitment Letter (provided, that the Commitment Letter may be amended, supplemented, modified and replaced as permitted by this Section 6.11 (a)), (ii) negotiating and entering into Definitive Financing Agreements with respect to the Financing consistent with the terms and conditions contained in the Commitment Letter (including, as necessary, the “flex” provisions contained in any related fee letter) and (iii) satisfying (or, if deemed advisable by Parent, obtaining the waiver of) on a timely basis all conditions (other than those conditions that by their nature are to be satisfied at the Closing) in the Commitment Letter and the Definitive Financing Agreements and complying with its obligations thereunder. In the event that all conditions contained in the Commitment Letter (other than the consummation of the Merger and those conditions that by their nature are to be satisfied at the Closing) have been satisfied or waived, Parent shall use reasonable best efforts to enforce its rights under the Commitment Letter, including to cause the Financing Sources to fund on the Closing Date the Debt Financing; provided, that in no event shall Parent be obligated to bring any Legal Proceedings against any Financing Sources. Parent shall not without the prior written consent of the Company permit any amendment or modification to, replacement of, or any waiver of any material provision or remedy under, the Commitment Letter if such amendment, modification, replacement, waiver or remedy would reasonably be expected to prevent, impede or materially delay the consummation of the Merger and the other transactions contemplated by this Agreement; provided, that no consent from the Company shall be required for (i) any amendment, replacement, supplement or modification of the Commitment Letter that adds lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as of the date hereof, (ii) implementation or exercise of any “flex” provisions provided in any related fee letter as in effect as of the date hereof or (iii) any amendment to, or replacement of or supplement or modification to, the Commitment Letter or Definitive Financing Agreement so long as such action would not be prohibited by the foregoing clause. Parent shall promptly notify the Company of any such amendment, modification, waiver or replacement and deliver the Company a copy thereof.
(b) Without limiting the generality of Section 6.11(a), if Parent shall give believes it will incur any Financing in connection with the Closing, on not less than five Business Days’ prior written notice of the initial request therefor, the Company prompt notice agrees to cooperate with Parent, as reasonably requested by Parent, to obtain such Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company or any of its Subsidiaries) including by using (and by causing its Subsidiaries and its Representatives to use) reasonable best efforts to:
(i) cause the management of the Company, in each case, with appropriate seniority and expertise, to participate, at reasonable times and upon becoming aware reasonable advance notice, in a reasonable number of any breach meetings, presentations, roadshows, drafting sessions, sessions with rating agencies, conference calls with prospective lenders of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or and investors in the Financing, and due diligence sessions;
(ii) upon subject to the receipt confidentiality undertakings set forth in the Confidentiality Agreement, provide reasonable and customary assistance with the preparation of materials relating to the Company and its Subsidiaries in connection with the transactions contemplated by this Agreement for rating agency presentations, marketing materials, offering documents and other documents necessary for any written notice from any party to a New Sponsor Equity Commitment Letter Financing, and provide reasonable cooperation with the due diligence efforts of the Financing Sources with respect to the Company and its Subsidiaries during normal business hours upon reasonable advance notice;
(iii) furnish to Parent (A) the Financing Deliverables and (B) the Financing Information (including any threatened breach updates to the Financing Information so that marketing materials used in any Financing do not contain any untrue statement of a material fact or omit to state a fact necessary to make the statements contained therein not misleading as a result of a misstatement or omission with respect to the Financing Information, other than, in each case, with respect to information supplied by or on behalf of Parent or Merger Sub);
(iv) cause its independent auditors to provide reasonable and customary cooperation in connection with the Financing, including by providing the Specified Auditor Assistance and signing customary management representation letters to such auditors so that such Specified Auditor Assistance can be provided;
(v) assist Parent with Parent’s preparation of pro forma financial statements and projections by providing the Financing Information to be used in preparing such pro formas that are requested in connection with any material provision Financing or that would customarily be included in the marketing materials with respect to the Financing; and
(vi) furnish to Parent other documents of the Company and its Subsidiaries reasonably requested by Parent in connection with any Financing that includes an offering of securities in order to allow such Financing Sources to establish a “due-diligence” defense; and
(vii) satisfy the conditions precedent set forth in the Debt Letters or any Definitive Financing Agreement to the extent the satisfaction of such New Sponsor Equity Commitment Letter conditions requires the cooperation of or threatened termination is within the control of any such New Sponsor Equity Commitment Letterthe Company and its Subsidiaries.
(c) Each party hereto shall provide, The Company hereby consents to the use of its and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company Subsidiaries’ logos in connection with the consummation of the TransactionsFinancing; provided that such logos are used solely in a manner that is not intended to, including (i) and is not reasonably expected to, harm or disparage the Company obtaining approval of (A) an increase in or its Subsidiaries or the size reputation or goodwill of the Company Board to such number as is requested in writing or its Subsidiaries and their respective marks, products, services, offerings or Intellectual Property Rights. Parent shall, promptly upon request by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any all reasonable and documented out-of-pocket costs and expenses (including attorney’s fees) incurred by it the Company and any of its Subsidiaries and their respective Representatives in connection with providing the assistance contemplated by this Section 6.11. Parent shall indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs, expenses (including reasonable attorney’s fees), awards, judgments, penalties and other Liabilities actually suffered or incurred by any of them in connection with the Financing and any information used in connection therewith (other than any information provided in writing by the Company or any of its Subsidiaries expressly for use in connection therewith) or in connection with providing the assistance contemplated by this Section 6.11, except to the extent arising from bad faith, willful misconduct or fraud of the Company’s compliance with Section 6.07(c)(i) through (iii), its Subsidiaries or their respective Representatives.
(d) The Notwithstanding anything to the contrary contained in this Section 6.11, (i) none of the Company or any of its Subsidiaries or their respective Representatives shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required to take or permit the taking of any action or provide any assistance that would (A) unreasonably interfere with the business or operations of the Company or any of its Subsidiaries, (B) cause any representation or warranty or covenant of the Company in this Agreement to be breached by the Company or any of its Subsidiaries, (C) require the Company or any of its Subsidiaries or their respective Affiliates to pay (or agree to pay) any fees, or reimburse any expenses prior to the Closing for the Surviving Company’s due assumption ofwhich it is not promptly reimbursed, and succession toor otherwise incur any other obligations (other than any obligations under customary authorization letters, management representation letters or other documents delivered to the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement independent registered accounting firm in connection with the consummation Specified Auditor Assistance) or give any indemnities prior to the Closing that are not contingent on the Closing, (D) cause any director, officer, employee or shareholder of the TransactionsCompany or any of its Subsidiaries to incur any personal Liability, including (E) conflict with the Merger Charter Documents of the Company or any of its Subsidiaries or any Applicable Laws, (F) result in the breach of, or default under, any Material Contract or (G) require the Company or any of its Subsidiaries to prepare separate financial statements for the Company or any of its Subsidiaries or change any fiscal period or prepare any financial statements or information that are not available to it and prepared in the ordinary course of its financial reporting practice; and (ii) customary none of the Company or any of its Subsidiaries or any of their respective directors or officers shall be obligated to adopt resolutions or execute consents to approve or authorize the execution of the Financing; provided, however that this clause (ii) shall not prohibit the adoption or execution of any resolutions or consents effective no earlier than the Closing Date (after giving effect to the Closing) by any Person that will remain or will become an officer or director of the Surviving Company as of the Effective Time. Nothing in this Section 6.11 shall require the Company or any of its Subsidiaries or their respective Representatives to disclose any information to Parent, Parent’s Representatives or the Financing Sources if such disclosure would (x) violate any Applicable Law or Contract or (y) jeopardize the attorney-client privilege, work product doctrine or other legal opinions as are required privilege held by the 2022 Indenture Company or any of its Subsidiaries. If the Facility Agreement Company or any of its Subsidiaries does not provide or cause its Representatives to provide such access or such information in reliance on the immediately preceding sentence, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate to provide the applicable access or information in a way that would not violate such Applicable Law or Contract or jeopardize such privilege.
(e) Parent acknowledges and agrees that, other than reasonable out-of-pocket costs and expenses subject to reimbursement pursuant to Section 6.11(c), none of the Company or any of its Subsidiaries or any of their respective Representatives shall have any responsibility for, or incur any Liability to, any Person under any Financing that Parent may obtain in connection with the consummation transactions contemplated by this Agreement or any cooperation provided pursuant to this Section 6.11.
(f) Notwithstanding any other provision set forth herein or anything to the contrary contained in the Confidentiality Agreement, Parent or any of its Affiliates may disclose Confidential Information (as defined in the Confidentiality Agreement) of the TransactionsCompany and its Subsidiaries to the Financing Sources (other than any sensitive information that the Company specifically designates in writing may not be disclosed), so long as the Financing Sources are subject to confidentiality undertakings under a binding written confidentiality commitment to Parent that are at least as restrictive as those applicable to Parent with respect to the Company (except that such confidentiality agreement need not contain any explicit or implicit standstill provision).
(g) Notwithstanding anything in this Agreement to the contrary, the parties hereto acknowledge and agree that the provisions contained in this Section 6.11 represent the sole obligations of the Company, its Subsidiaries and their respective Representatives with respect to cooperation in connection with the arrangement of any financing (including the MergerFinancing) to be obtained by Parent or any of its Subsidiaries with respect to the transactions contemplated by this Agreement and no other provision of this Agreement shall be deemed to expand such obligations. Notwithstanding anything to the contrary contained herein, in no event shall the receipt or availability of any funds or financing (including, for the avoidance of doubt, the Financing) by Parent, Merger Sub or any of their respective Subsidiaries be a condition to any of Parent’s or Merger Sub’s obligations under this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Gilat Satellite Networks LTD), Merger Agreement (Comtech Telecommunications Corp /De/), Merger Agreement (Gilat Satellite Networks LTD)
Financing. (a) Subject to CTWS shall, and shall cause the terms CTWS Subsidiaries and conditions of this Agreementdirect its and their respective Representatives to, each of Parent and Merger Sub shall use its and their respective reasonable best efforts to consummate the Equity Financing at or prior to the Effective Time.
(b) Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of provide such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably requested by SJW or its Affiliates in connection with the arrangement of any financing to be consummated in connection with the Merger and the other transactions contemplated by this Agreement (the “Debt Financing”) including, without limitation, (i) participating in a reasonable number of meetings and presentations with prospective financing sources (including direct contact between senior management of CTWS, on the one hand, and actual and potential financing sources, on the other hand), in each case on reasonable advance notice and at times and locations to be mutually agreed, (ii) furnishing SJW with customary financial and other information regarding CTWS and the CTWS Subsidiaries and assisting SJW or its Affiliates in the preparation of pro forma financial statements and financial information (of a type and form required by and in compliance with Regulation S-X and Regulation S-K promulgated under the Securities Act and related forms) and (iii) furnishing SJW and any financing sources promptly, and in any event within 10 Business Days prior to the Closing Date, with all documentation and other information required with respect to the Equity Debt Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactionsunder applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act of 2001, as amended; provided that nothing herein shall require such cooperation to the extent it would (i) unreasonably disrupt the Company obtaining approval of (A) an increase in the size conduct of the Company Board business or operations of CTWS or any CTWS Subsidiary, (ii) require CTWS or any CTWS Subsidiary to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Companypay any fees, in each case of clauses (A) and (B), effective as of immediately reimburse any expenses or otherwise incur any liability prior to the Effective Time, and (iiiii) the Company using commercially reasonable efforts require CTWS or any CTWS Subsidiary to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking take any action that would reasonably be expected to conflict with or violate applicable Law, or result in any violation or breach of, or default under, the certificate of incorporation or by-laws or other comparable organizational documents of CTWS or any CTWS Subsidiary, or (iv) require CTWS or any CTWS Subsidiary to execute or deliver any certificate, document, instrument or agreement, or undertake any obligation, that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated Closing.
(b) CTWS shall, and shall cause the CTWS Subsidiaries and direct its and their respective Representative to, assist in accordance connection with its amending the terms prior of, the pay-off of or the obtaining of consents pertaining to existing Indebtedness of CTWS or any CTWS Subsidiary, including the occurrence delivery of customary payoff letters and releases of related guarantees, liens and other security interests, as applicable, in each case at the Effective Timerequest of SJW.
(c) SJW shall (i) promptly upon request by CTWS, Parent shall promptly reimburse the Company CTWS for any all reasonable and documented out-of-pocket costs fees and expenses (including auditor’s and attorneys’ fees and expenses) of CTWS, its Subsidiaries, its Affiliates and its and their respective Representatives incurred by it in connection with the Companyrequested cooperation set forth in this Section 6.12 and (ii) except as a result of fraud, willful misconduct, intentional misrepresentation or intentional breach by CTWS, its Subsidiaries, its Affiliates or its or their respective Representatives, or arising from historical financial information furnished in writing by or on behalf of SJW and/or its Subsidiaries (including financial statements and audits thereof), indemnify, defend and hold harmless CTWS, its Subsidiaries, its Affiliates and its and their respective Representatives against any claims, losses, liabilities, damages, Judgments, inquiries, awards, penalties, settlement payments, fines, fees, Taxes, costs, fees and expenses (including reasonable auditor’s compliance and attorneys’ fees and expenses), of any kind, incurred, imposed on, sustained, suffered by or asserted against, any of them, arising out of or resulting from the Debt Financing, the performance by CTWS, its Subsidiaries, its Affiliates and its and their respective Representatives of any obligations set forth in this Section 6.12 and any information utilized in connection therewith (including any claim by or with Section 6.07(c)(i) through (iiirespect to any financing sources, prospective lenders, agents and arrangers and ratings agencies).
(d) The Company shall use reasonable best efforts Notwithstanding anything to obtainthe contrary herein, execute and deliver such documents any breach by CTWS or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s its Subsidiaries of their obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee this Section 6.12 shall not constitute a breach of this Agreement for purposes of Article VIII or a breach of the 2022 Notes or as may be required under the Facility Agreement condition precedent set forth in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the MergerSection 7.02(b).
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Connecticut Water Service Inc / Ct), Agreement and Plan of Merger (SJW Group), Merger Agreement (SJW Group)
Financing. (a) Subject Verizon shall use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the proceeds of, the Financing and, if applicable, the Replacement Financing on the terms and conditions of this Agreementdescribed in the Financing Documents and Replacement Financing Documents, each of Parent and Merger Sub shall use its including using commercially reasonable best efforts to (i) comply with its obligations and satisfy the conditions precedent to funding under the Financing Documents and, if applicable, Replacement Financing Documents; (ii) upon satisfaction of the conditions set forth in Section 3.02 of the Loan Facility (and/or, in respect of certainty of funding, such substantially equivalent conditions (or conditions that are more favorable to Verizon) as may appear in any Replacement Financing Document), consummate the Equity Financing and, if applicable, the Replacement Financing at or prior to Closing; and (iii) cause the Effective TimeFinancing Sources and, if applicable, Replacement Financing Sources to fund on the Closing Date the Financing and, if applicable, the Replacement Financing to the extent required to consummate the Transaction in accordance with the terms thereof (including, to the extent commercially reasonable, by promptly taking enforcement action under the Financing Documents and, if applicable, the Replacement Financing Documents in the event of a breach by any Financing Sources or Replacement Financing Sources).
(b) Parent Verizon shall give have the Company prompt notice right to substitute the proceeds of consummated debt (including unsecured notes) or equity offerings for all or any portion of the Financing or, if applicable, Replacement Financing by reducing commitments under the Financing and, if applicable, any Replacement Financing; provided, that to the extent any consummated debt has a scheduled special or mandatory redemption right, such right is not exercisable prior to the Termination Date. Further, Verizon shall have the right to substitute commitments in respect of other debt or equity financing for all or any portion of the Financing from the same and/or alternative bona fide third-party financing sources (“Replacement Financing Sources”) so long as (i) upon becoming aware all conditions precedent to effectiveness of any breach definitive documentation for such debt or equity financing have been satisfied and the conditions precedent to funding under the debt financing or issuance of any material provision the equity financing are, in respect of any New Sponsor Equity Commitment Letter certainty of funding, substantially equivalent to (or termination conditions that are more favorable to Verizon than) the conditions set forth in Section 3.02 of any New Sponsor Equity Commitment Letter by any party thereto or the Loan Facility, and (ii) upon the receipt in respect of any written notice from any party debt financing, prior to a New Sponsor Equity Commitment Letter with funding of the loans thereunder, the commitments in respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter debt financing are subject to restrictions on assignment which are substantially equivalent to or threatened termination more favorable to the Verizon than the restrictions set forth in Section 8.07 of the Loan Facility (any such New Sponsor Equity Commitment Letterdebt or equity financing which satisfies the foregoing clauses (i) and (ii), the “Replacement Financing”; the definitive documentation for any such Replacement Financing, the “Replacement Financing Documents”).
(c) Each party hereto Verizon shall providehave the right from time to time to amend, and replace, supplement or otherwise modify, or waive any provision or remedy under, the Financing Documents or Replacement Financing Documents; provided, that Verizon shall cause each not, without the prior written consent of its Subsidiaries and each of their respective Representatives to provideVodafone, all cooperation as may be reasonably required with respect at any time prior to the Equity Financing Closing: (i) permit any amendment, replacement, supplement or modification to, or any debt financing waiver of any material provision or indebtedness of the Company remedy under, any Financing Document or Replacement Financing Document if such amendment, replacement, supplement, modification or waiver (A) adds any new (or modifies, in connection with a manner materially adverse to Verizon, any existing) conditions to the consummation of the TransactionsFinancing or Replacement Financing (as applicable), including (iB) reduces the Company obtaining approval aggregate amount of the Financing and the Replacement Financing other than to the extent that (1) such reduction is required by the terms of the Loan Facility or (2) Verizon has available to it Replacement Financing or cash on hand in an amount equal to such reduction, (C) materially adversely impacts the ability of Verizon to enforce its rights against other parties to any Financing Document as so amended, replaced, supplemented, modified or waived, relative to the ability of Verizon to enforce its rights against such other parties to any Financing Document as in effect on the date hereof or Replacement Financing Document as in effect on the date of execution thereof, or (D) prevents, impedes or materially delays the consummation of the transactions contemplated by this Agreement; provided, further, that notwithstanding the foregoing, Verizon may amend the Financing Documents and/or Replacement Financing Documents to add lenders, lead arrangers, syndication agents, documentation agents or similar entities who had not executed any Financing Document and/or Replacement Financing Document; or (ii) terminate the Loan Facility other than to the extent that (A) an increase in the size of commitments under the Company Board Loan Facility have been reduced to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated zero in accordance with its terms prior or (B) Verizon has obtained Replacement Financing in an aggregate amount equal to the occurrence commitment under the Loan Facility at the time of such termination of the Effective Time, Parent Loan Facility. Verizon shall promptly reimburse following execution deliver to Vodafone copies of any such amendment, replacement (including any Replacement Financing Document), supplement, modification or waiver (which may be redacted to delete any compensation information). Notwithstanding anything to the Company contrary in this Agreement, Verizon agrees that it shall not reduce the aggregate amount of all unfunded commitments in respect of the Financing and, if applicable, Replacement Financing (whether as a result of a disposition of assets, debt issuance or equity issuance but, for any reasonable and documented out-of-pocket costs incurred by it in connection with the Companyavoidance of doubt, not as a result of the funding of the loans thereunder) to an amount less than Twenty Billion Dollars ($20,000,000,000) without Vodafone’s compliance with Section 6.07(c)(i) through (iii)consent, which shall not be unreasonably withheld, conditioned or delayed.
(d) The Company Verizon acknowledges and agrees that Vodafone and its Affiliates (including, prior to the Closing, the Sold Entities), their respective Representatives and, prior to the Closing, the Partnership or any of its Subsidiaries and their respective Representatives, shall use reasonable best efforts not have any responsibility for, or incur any liability to, any Person under or pursuant to obtainthe Financing or Replacement Financing pursuant to the Financing Documents or Replacement Financing Documents, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption ofif any, and succession tothat Verizon shall indemnify and hold harmless Vodafone and its Affiliates (including, prior to the Closing, the Company’s obligations under Sold Entities), their respective Representatives and, prior to the 2022 Indenture Closing, the Partnership and the Facility Agreementits Subsidiaries and their respective Representatives from and against any and all losses, including (i) customary closing certificates and other similar documents as may be reasonably requested damages, claims, costs or expenses suffered or incurred by the trustee any of the 2022 Notes or as may be required under the Facility Agreement them in connection with the consummation Financing or the Replacement Financing pursuant to the Financing Documents or Replacement Financing Documents, if any, except to the extent resulting from any breaches of the Transactionsrepresentations, including warranties or covenants of Vodafone under this Agreement. Verizon shall keep Vodafone reasonably informed with respect to all material activity concerning the Merger and (ii) customary legal opinions as are required status of the financing contemplated by the 2022 Indenture Financing Documents and Replacement Financing Documents (if any), it being understood, for the avoidance of doubt, that nothing in this Section 5.9(d) shall relieve Vodafone of any liability pursuant to Section 8.3 or the Facility Agreement require Verizon to provide indemnification in connection with the consummation respect of the Transactions, including the Mergerany such liability.
Appears in 3 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Vodafone Group Public LTD Co), Stock Purchase Agreement (Verizon Communications Inc)
Financing. (a) Subject A. The City's issuance of the 2010 Note is authorized by and in accordance with the Resolution for the purpose of refinancing the CRA Projects and for other lawful purposes authorized by the Resolution. The debt service on the 2010 Note is not secured by any amounts pledged to the terms City hereunder.
B. In consideration of the payment of the Tax Increment Revenues by the Community Redevelopment Agency to the City to pay the portion of the 2010 Note which is attributable to the CRA Projects, the City has refinanced the cost of the CRA Projects through the issuance of the 2010 Note pursuant to the Resolution, and conditions if necessary due to the nature of such CRA Projects, any amounts required to be rebated to the United States Treasury pursuant to the Internal Revenue Code of 1986, as amended, in order to preserve the exclusion of interest on the 2010 Note from the gross income of the recipients thereof for federal income taxation purposes.
C. Upon execution of this Agreement, each of Parent and Merger Sub subject to Section 4 hereof, the Community Redevelopment Agency shall use its reasonable best efforts immediately deposit or cause to consummate be deposited Tax Increment Revenues received by the Equity Financing at or prior Community Redevelopment Agency with the City in amounts sufficient to pay the Effective Time.following (the "CRA Obligations"):
(b) Parent shall give the Company prompt notice (i) upon becoming aware all amounts paid or payable pursuant to the Resolution, by reason of the issuance of the portion of the 2010 Note which is attributable to the CRA Projects or necessary in order to preserve the exclusion of interest on the portion of the 2010 Note which is attributable to the CRA Projects from the gross income of the recipients thereof for federal income taxation purposes; and
(ii) all amounts necessary to reimburse the City for amounts expended by it to pay any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto the items mentioned in clauses (i) or (ii) upon above and any interest thereon as prescribed in Section 2 hereof. Subject to Section 4 hereof, the receipt of any written notice from any party obligation to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect transfer the Tax Increment Revenues to the Equity Financing or any debt financing or indebtedness of City to pay the Company CRA Obligations specified in connection with the consummation of the Transactions, including clauses (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) above shall survive the Company using commercially reasonable efforts date on which the 2010 Note is no longer due and owing under the Resolution. Any amounts received by the Community Redevelopment Agency in excess of the amount necessary to pay the CRA Obligations set forth above may be retained by the Community Redevelopment Agency and used for any lawful purpose of the Community Redevelopment Agency.
D. Subject to Section 4 hereof, in order to secure its indebtedness to the City for the CRA Obligations, the Community Redevelopment Agency hereby pledges to the City the Tax Increment Revenues which pledge shall be prior and superior to all other pledges thereof; provided, however, that the tax increment revenues which derive from any other redevelopment areas subsequently established by the Community Redevelopment Agency are not pledged in any manner to secure the CRA Obligations.
E. The Community Redevelopment Agency is presently entitled to receive the Tax Increment Revenues to be deposited in the Redevelopment Trust Fund, and has taken all action required by law to entitle it to receive such Tax Increment Revenues, and the Community Redevelopment Agency will diligently enforce the obligation of any "Taxing Authority" (as defined in Section 163.340(2), Florida Statutes) to appropriate its proportionate share of the Tax Increment Revenues and will not take, or consent to or adversely permit, any action which will impair or adversely affect the obligation of each such Taxing Authority to appropriate its proportionate share of such Tax Increment Revenues, impair or adversely affect in any manner the deposit of such Tax Increment Revenues in the Redevelopment Trust Fund, or the pledge of such Tax Increment Revenues hereby to the extent as described herein. The Community Redevelopment Agency and the City shall be unconditionally and irrevocably obligated so long as the 2010 Note is outstanding, and until the payment in full by the Community Redevelopment Agency of its indebtedness to the City for the CRA Obligations, to take all lawful action necessary or required in order to ensure that each such Taxing Authority shall appropriate its proportionate share of the Parent Tax Increment Revenues as now or later required by law, and to make or cause to be made any deposits of Tax Increment Revenues or other funds required by this Agreement and the Surviving Company benefit from Resolution.
F. Subject to Section 4 hereof, the existing lending relationships Community Redevelopment Agency does hereby authorize and consent to the exercise of full and complete control and custody of the Group Companies to Redevelopment Trust Fund, and any and all moneys therein, by the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required City for the Surviving Company’s due assumption of, purpose provided in the Resolution and succession to, the Company’s obligations under the 2022 Indenture and the Facility this Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee payment of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the MergerCRA Obligations.
Appears in 3 contracts
Sources: Interlocal Agreement, Interlocal Agreement, Interlocal Agreement
Financing. (a) Subject Parent has received and accepted an executed and binding debt commitment letter dated as of the date hereof, a true, correct and complete copy of which has been delivered to the Company (the “Debt Commitment Letter”) from the Debt Financing Sources party thereto pursuant to which the Debt Financing Sources have agreed, subject to the terms and conditions of thereof, to provide the debt amounts set forth therein. The financings referred to in the Debt Commitment Letter are collectively referred to in this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to consummate Agreement as the Equity Financing at or prior to the Effective Time“Debt Financing”.
(b) Parent shall give As of the date hereof, the obligations of the Debt Financing Sources to fund the Debt Financing under the Debt Commitment Letter are not subject to any conditions precedent or other contingencies, except as set forth in the Debt Commitment Letter and the Fee Letters described below. Except for a customary fee letter related to the Debt Financing, a true, correct and complete copy of which has been provided to the Company prompt notice with only the amount of fees, “pricing flex” and other economic terms therein redacted (none of which (i) upon becoming aware subject the funding of the Debt Financing to any breach of any material provision of any New Sponsor Equity Commitment Letter additional conditions precedent or termination of any New Sponsor Equity Commitment Letter by any party thereto other contingencies or (ii) upon could reduce the receipt total amount of the Debt Financing available to Parent or either Merger Sub on the Closing Date), and a customary fee credit letter related to the Debt Financing and a customary engagement letter related to the Debt Financing (neither of which (A) subject the funding of the Debt Financing to any written notice from any party additional conditions precedent or other contingencies or (B) could reduce the total amount of the Debt Financing available to a New Sponsor Equity Commitment Letter Parent or either Merger Sub on the Closing Date) (collectively, such fee letter, fee credit letter and engagement letter, the “Fee Letters”), as of the date hereof, there are no side agreements or other arrangements, commitments or understandings with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letterthe Debt Financing.
(c) Each party hereto shall provide, As of the date hereof and shall cause each assuming satisfaction or waiver (to the extent permitted by applicable Law) of its Subsidiaries the conditions to Parent’s and each of their respective Representatives Merger Sub’s obligations to provideconsummate the Merger, Parent does not have any reason to believe that it will be unable to satisfy on a timely basis all cooperation as may terms and conditions to be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase satisfied by it in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately Debt Commitment Letter on or prior to the Effective TimeClosing Date, and (ii) the Company using commercially reasonable efforts to ensure that the nor does Parent and the Surviving Company benefit from the existing lending relationships have knowledge, as of the Group Companies to the extent requested by Parent. Neither the Company nor date of this Agreement, that any of the Debt Financing Sources will not, or is expected not to, perform its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)obligations thereunder.
(d) The Company As of the date hereof, the Debt Commitment Letter is a legal, valid and binding obligation of Parent and, to the knowledge of Parent, of the other parties thereto. Parent has paid in full any and all commitment fees or other fees required to be paid pursuant to the terms of the Debt Commitment Letter on or before the date of this Agreement and will pay in full any such amounts due on or before the Closing Date.
(e) For the avoidance of doubt, in no event shall use reasonable best efforts to obtainthe receipt or availability of any funds or financing (including, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession toavoidance of doubt, the CompanyDebt Financing) by Parent or any Affiliate thereof or any other financing or other transactions be a condition to any of Parent’s or either Merger Sub’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Mergerhereunder.
Appears in 3 contracts
Sources: Merger Agreement (Synnex Corp), Merger Agreement (Synnex Corp), Merger Agreement (Convergys Corp)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange the Debt Financing on the terms and conditions described in the Debt Financing Commitment (provided that Parent and Merger Sub may replace or amend the Debt Financing Commitment to add lenders, lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Financing Commitment as of the date hereof, or otherwise so long as the terms would not materially adversely impact the ability of Parent or Merger Sub to consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby), including using reasonable best efforts to (i) maintain in effect the Debt Financing Commitment, (ii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub to obtaining the Debt Financing set forth in the Debt Financing Commitment (including by consummating the equity financing pursuant to the terms of the Equity Financing Commitments), (iii) enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Financing Commitments or on other terms that would not adversely impact the ability or likelihood of Parent or Merger Sub to consummate the transactions contemplated hereby and (iv) consummate the Financing at or prior to the Effective Time.
(b) Closing. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, Parent shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources in an amount sufficient to consummate the transactions contemplated by this Agreement as promptly as practicable following the occurrence of such event; provided, that such alternative financing shall be on terms and conditions materially no less favorable than those provided in the Debt Financing Commitment, or otherwise on terms and conditions acceptable to Parent. Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter breach by any party thereto to the Financing Commitments, of which Parent or (ii) upon the receipt of Merger Sub becomes aware, or any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of the Financing Commitments. Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Debt Financing and provide copies of all documents related to the Debt Financing (other than any such New Sponsor Equity Commitment Letterfee letters and ancillary documents subject to confidentiality agreements) to the Company. The Company hereby consents to the use of its and its Subsidiaries’ names and logos in connection with the Debt Financing.
(cb) Each party hereto Prior to the Closing, the Company shall provideprovide to Parent and Merger Sub, and shall cause each of its Subsidiaries to, and each shall use its reasonable best efforts to cause the respective officers, employees and advisors, including legal and accounting, of their respective Representatives the Company and its Subsidiaries to, provide to provide, Parent and Merger Sub all cooperation as may reasonably requested by Parent that is necessary in connection with the Financing, including using reasonable best efforts to (i) participate in meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) provide assistance in preparation of confidential information memoranda (including execution and delivery of a customary representation letter) and other materials to be used in connection with obtaining financing contemplated by the Debt Financing Commitment and all information (including financial information) customarily contained therein, (iii) provide assistance in the preparation for, and participate in, meetings, due diligence sessions and similar presentations to and with, among others, prospective lenders, investors and rating agencies, (iv) enter into a loan agreement and related documents (including pledge and security documents), (v) execute and deliver customary certificates, legal opinions or other documents reasonably required requested by Parent (including a certificate of the chief financial officer of the Company with respect to solvency matters) and otherwise reasonably facilitate the Equity pledging of collateral contemplated by the Debt Financing Commitment (including taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and to conduct the appraisals and field examinations relating thereto as contemplated by the Debt Financing Commitment and (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing) and (vi) provide the financial statements and other information necessary for the satisfaction of the obligations and conditions set forth in the Debt Financing Commitment within the time periods required thereby in order to permit a Closing Date on or any debt financing prior to the Termination Date; provided, however, that nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of the Company or its Subsidiaries. The Company shall use its reasonable best efforts to obtain pay-off letters, in form and substance reasonably satisfactory to Parent, from holders of all indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor or any of its Subsidiaries as set forth in Section 7.2(g) of the Company Disclosure Letter and to ensure that each such pay-off letter will provide for the waiver of any notice provisions relating thereto. The Company and its Subsidiaries shall (x) be required not pay or agree to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon amounts in excess of all principal and accrued interest, if any, outstanding thereon as of the Closing in respect of such indebtedness in connection with obtaining such pay-off letters and waivers without the prior written consent of Parent (including entry into any agreement) which shall not be unreasonably withheld or would be effective prior to the Effective Timedelayed). If this Agreement is terminated in accordance pursuant to Section 8.1 or 8.3(b) (but with its terms prior respect to Section 8.3(b) only for a Willful or Deliberate Breach by Parent or Merger Sub) Parent shall, promptly upon request by the occurrence of the Effective TimeCompany, Parent shall promptly reimburse the Company for any all reasonable and documented out-of-pocket costs incurred by it the Company or its Subsidiaries in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)such cooperation.
(dc) Notwithstanding anything to the contrary set forth in this Agreement or in the Debt Financing Commitment, the Company and Parent agree that Parent shall have the right, in its sole discretion, to determine the aggregate principal amount of funded debt to be incurred at Closing to finance the transactions contemplated hereby (the “Aggregate Closing Funded Debt”). If at any time prior to February 23, 2007, Parent determines, in its sole discretion, that the Aggregate Closing Funded Debt shall be an aggregate principal amount less than $600,000,000, Parent shall notify the Company in writing of such determination, which notice shall specify the Aggregate Closing Funded Debt Parent has determined will be incurred at Closing. The Company shall use reasonable best efforts have seventy-two (72) hours after receipt of such notice to obtainadvise Parent in writing whether or not the Company elects to waive irrevocably the condition set forth in Section 7.3(c) hereof by reason of such determination by Parent. If the Company fails to respond to such notice or does not elect in writing to waive such condition prior to the end of such seventy-two (72) hour period, execute and deliver Parent shall have the right, in its sole discretion, to terminate this Agreement pursuant to Section 8.4(i) at any time on or prior to the Termination Date. Parent may exercise its right under this Section 6.12(c) to determine Aggregate Closing Funded Debt on one or more occasions so long as it complies with its notice requirements each time it exercises such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Mergerright.
Appears in 3 contracts
Sources: Merger Agreement (McJunkin Red Man Corp), Merger Agreement (Goldman Sachs Group Inc), Merger Agreement (McJunkin Red Man Holding Corp)
Financing. (a) Subject Parent shall use its best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Financing on the terms and conditions described in the Commitment Letter, including using best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter, (iii) satisfy on a timely basis all conditions applicable to Parent in the Commitment Letter that are within its control and comply with its obligations thereunder, and (iv) consummate the Financing no later than the Acceptance Time. Parent shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under, the Commitment Letter and/or substitute other debt or equity financing for all or any portion of the Financing from the same and/or alternative financing sources, provided that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter that amends the Financing and/or substitution of all or any portion of the Financing shall not prevent or impede or delay the consummation of the Offer, the Merger and the other transactions contemplated by this Agreement and shall be subject to Section 6.23. If any portion of the Financing becomes unavailable or Parent becomes aware of any event or circumstance that makes any portion of the Financing unavailable, in each case, on the terms and conditions contemplated in the Commitment Letter and such portion is reasonably required to fund the cash portion of the Offer Price or the Merger Consideration and all fees, expenses and other amounts contemplated to be paid by Parent pursuant to this Agreement, Parent shall use its best efforts to arrange and obtain alternative financing from alternative financial institutions in an amount sufficient to consummate the transactions contemplated by this Agreement upon conditions no less favorable to Parent and the Company than those in the Commitment Letter as promptly as practicable following the occurrence of such event.
(b) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing in accordance with Section 6.17(a), or if Parent substitutes other debt or equity financing for all or a portion of the Financing, in each case to the extent permitted pursuant to Section 6.17(a), each of Parent and Merger Sub shall use its reasonable best efforts to consummate the Equity Financing at or prior to the Effective Time.
(b) Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter shall comply with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required covenants set forth herein with respect to the Equity Financing Commitment Letter as so amended, replaced, supplemented or any debt financing or indebtedness of the Company in connection otherwise modified and with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board respect to such number as is requested in writing by Parent and (B) the election other debt or equity financing to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure same extent that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies would have been obligated to comply with respect to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)Financing.
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 3 contracts
Sources: Merger Agreement (Terra Industries Inc), Merger Agreement (CF Industries Holdings, Inc.), Agreement and Plan of Merger (CF Industries Holdings, Inc.)
Financing. (a) Subject At the Closing, Parent and Merger Sub will have immediately available funds sufficient to pay the aggregate Merger Consideration and any other payments contemplated by this Agreement and to pay all fees and expenses related to the Financing, the Merger or any other transactions contemplated by this Agreement. True, complete and correct copies of the fully executed Purchase Agreement by and between HSS and Stanford International Bank Ltd., (“SIBL”) dated as of the date of this Agreement (the “Purchase Agreement”), pursuant to which SIBL has agreed, subject to the terms and conditions thereof, to provide to Parent and/or Merger Sub the amounts set forth therein (the “Financing”), have been provided to the Company. The Purchase Agreement is the only agreement that has been entered into by Parent or its Affiliates with respect to the Financing that contain conditions to the closing of this the Financing. Except to the extent permitted by Section 5.12(c), the Purchase Agreement has not been amended or modified, and the respective obligations contained in the Purchase Agreement have not been withdrawn or rescinded in any respect. Except to the extent permitted by Section 5.12(c), the Purchase Agreement, each in the form so delivered, is in full force and effect and is a legal, valid and binding obligation of Parent and and/or Merger Sub. No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent and/or Merger Sub shall use its reasonable best efforts to consummate under any term or condition of the Equity Financing at Purchase Agreement. Parent and/or Merger Sub has fully paid any and all commitment fees or prior other fees incurred in connection with the Purchase Agreement that have become due and payable. In the event a New Purchase Agreement is entered into, references in this Agreement to the Effective TimePurchase Agreement shall be deemed to be references to the New Purchase Agreement.
(b) Parent shall give Subject to its terms and conditions, the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) Financing, when funded in accordance with the Purchase Agreement, will provide funds at the Closing and at the Effective Time sufficient to consummate the Merger upon the receipt terms contemplated by this Agreement and to pay all related fees and expenses associated therewith, including payment of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach all amounts under Article II of any material provision of such New Sponsor Equity Commitment Letter this Agreement. There are no conditions precedent or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect other contingencies to the Equity Financing or any debt financing or indebtedness funding of the Company full amount of the Financing other than as set forth in the Purchase Agreement. Parent and Merger Sub have no reason to believe that any of the conditions precedent to the Financing will not be satisfied in full in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing transactions contemplated by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure this Agreement or that the Financing will not be available to Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon and/or Merger Sub on the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)Date.
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 3 contracts
Sources: Merger Agreement (Emageon Inc), Merger Agreement (Health Systems Solutions Inc), Merger Agreement (Health Systems Solutions Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, each Each of Parent and Merger Sub shall use its reasonable best efforts to cause BI-LO Holding, LLC (“BI-LO Holding”) to obtain the Debt Financing on the terms and conditions described in the Debt Financing Commitments and the Fee Letter, including using reasonable best efforts to (i) negotiate definitive agreements with respect thereto on the terms and conditions contained therein, (ii) satisfy on a timely basis all conditions applicable to BI-LO Holding, Parent and Merger Sub in the Debt Financing Commitments and the Fee Letter that are within its or their respective Affiliates’ control (including their respective direct and indirect parent companies and their Affiliates), (iii) comply with its obligations under the Financing Commitments, and (iv) consummate the Equity Financing at or prior to the Effective TimeClosing Date (it being understood that it is not a condition to Closing under this Agreement, nor the consummation of the Merger, for Parent or Merger Sub to obtain the Financing or any alternative financing). Notwithstanding anything to the contrary in the immediately preceding sentence, Parent and Merger Sub shall, and shall cause each of BI-LO Holding and the Sponsor and their respective Affiliates to, take all actions reasonably necessary to maintain in effect the Financing Commitments.
(b) Parent shall keep the Company informed on a regular basis and in reasonable detail of the status of its and BI-LO Holding’s efforts to arrange the Debt Financing (including promptly providing the Company with copies of all definitive agreements related to the Debt Financing). Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter breach or termination of any New Sponsor Equity Commitment Letter default by any party thereto to any of the Financing Commitments or definitive agreements related to the Financing of which Parent becomes aware, (ii) upon of the receipt of any written notice or other written communication, in each case from any Financing Source with respect to (A) any material actual or potential breach or default, or any termination or repudiation by any party to a New Sponsor Equity Commitment Letter any of the Financing Commitments or definitive agreements related to the Financing of any provisions of the Financing Commitments or definitive agreements related to the Financing or (B) any material dispute or disagreement between or among any parties to any of the Financing Commitments or definitive agreements related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Closing, and (iii) if at any threatened breach of time for any reason Parent believes in good faith that it or BI-LO Holding will not be able to obtain all or any material provision portion of such New Sponsor Equity Commitment the Financing on the terms and conditions, in the manner or from the sources contemplated by any of the Financing Commitments and the Fee Letter or threatened termination definitive agreements related to the Financing. As soon as practicable after the Company delivers to Parent a written request, Parent shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause (i), (ii) or (iii) of any such New Sponsor Equity Commitment Letterthe immediately preceding sentence.
(c) Each party hereto Parent and BI-LO Holding shall providehave the right from time to time to amend, and shall cause each replace, supplement or otherwise modify, or waive any of its Subsidiaries rights under the Debt Financing Commitments, or substitute other debt or equity financing for all or any portion of the Financing from the same or alternative Financing Sources; provided, that any such amendment, replacement, supplement, modification or waiver shall not (i) expand upon the conditions precedent to the Financing as set forth in the Financing Commitments and each of their respective Representatives to provide, all cooperation as may the Fee Letter in any way or (ii) be reasonably required with respect expected to the Equity Financing prevent or cause any debt financing or indebtedness delay of the Company in connection with the consummation of the TransactionsMerger and the other transactions contemplated by this Agreement (taking into account any market flex provisions). For purposes of this Section 5.11, references to “Financing” shall include the financing contemplated by the Financing Commitments and the Fee Letter as permitted to be amended or modified by this paragraph (c) and references to “Financing Commitments” and “Debt Financing Commitments” shall include such documents as permitted to be amended or modified by this paragraph (c). In the event any portion of the Debt Financing becomes unavailable on the terms and conditions (including (ithe flex provisions) the Company obtaining approval of (A) an increase contemplated in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent Debt Financing Commitments and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective TimeFee Letter, Parent shall promptly reimburse so notify the Company for any and shall cause BI-LO Holding to use reasonable best efforts to promptly obtain alternative financing on terms not materially less beneficial to BI-LO Holding and documented outParent (as determined in the reasonable judgment of BI-of-pocket costs incurred LO Holding and Parent, taking into account the flex provisions set forth in the Fee Letter) and in an amount sufficient to consummate the Merger, the Refinancing and the other transactions contemplated by it in connection with this Agreement, as promptly as practicable following the Company’s compliance with Section 6.07(c)(i) through (iii)occurrence of such event.
(d) The Company shall use its reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption ofto, and succession shall cause its Subsidiaries and its and their respective Representatives to use their reasonable best efforts to, at Parent’s sole cost and expense, promptly provide to Parent and Merger Sub all cooperation reasonably requested by Parent in connection with the Company’s obligations under Financing (provided that such requested cooperation does not unreasonably interfere with the 2022 Indenture and ongoing operations of the Facility AgreementCompany or any of its Subsidiaries), including including:
(i) participating in a reasonable number of meetings (including customary closing certificates one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the Financing and the Chief Executive Officer, Chief Financial Officer, Chief Operating Officer and General Counsel of the Company and other members of senior management and Representatives of the Company), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Financing, in each case, with reasonable advance notice and at reasonable locations;
(ii) cooperating reasonably with the marketing efforts of Parent, BI-LO Holding and the Financing Sources for all or any portion of the Debt Financing;
(iii) assisting reasonably with the preparation of rating agency presentations, offering documents, bank information memoranda, lender presentations and similar documents necessary or customary for use in connection with the Financing, including execution and delivery of customary representation letters in connection with bank information memoranda;
(iv) as may promptly as practical and to the extent not furnished to Parent prior to the date hereof, furnishing Parent and the Financing Sources (A) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Company (or its predecessors, as applicable) for each of the three fiscal years most recently ended at least 75 days prior to the Closing Date, which shall be prepared in accordance with GAAP, and (B) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Company (or its predecessors, as applicable) for each fiscal quarter ended at least 40 days prior to the Closing Date (other than the fourth fiscal quarter of any year), which shall be prepared in accordance with GAAP (such information, the “Required Information”);
(v) providing all relevant information with respect to collateral and providing access to Parent and its Financing Sources to allow them to conduct audit examinations and appraisals with respect to such collateral;
(vi) obtaining, no sooner than the Effective Time, surveys, title insurance and other like documentation customary for financing similar to the Debt Financing (except that the Company shall not be required to obtain or provide any legal opinions from any counsel to the Company);
(vii) executing and delivering, as of the Effective Time, definitive financing documentation, including pledge and security documents and certificates, documents and instruments relating to guarantees, collateral and other matters ancillary to the Financing (including a customary certificate of the Chief Financial Officer of the Company with respect to solvency matters), and otherwise reasonably facilitating the pledging of collateral and the providing of the guarantees; provided that no obligation of the Company under any such agreement, pledge or grant shall be effective until the Effective Time;
(viii) cooperating reasonably in facilitating the termination of the Second Amended and Restated Credit Agreement, dated March 18, 2011, by and among the Company, the lenders party thereto, and ▇▇▇▇▇ Fargo Bank, National Association, as administration agent, and obtaining all documentation reasonably requested by the trustee Financing Sources evidencing the termination of such Indebtedness and the release of all related liens;
(ix) cooperating reasonably in facilitating the cancellation and replacement, or rollover into the Debt Financing, of all outstanding letters of credit and the termination of any related letter of credit agreements to which the Company or any of its Subsidiaries is a party and obtaining all documentation reasonably requested by the Financing Sources evidencing the termination of such Indebtedness and the release of all related liens; and
(x) taking at the Effective Time all corporate actions reasonably necessary to permit the consummation of the 2022 Notes Debt Financing and to permit the proceeds thereof, together with the cash at the Company and its Subsidiaries, to be made available to Parent on the Closing Date to consummate the Merger. The Company will periodically update the Required Information included in any bank information or as may other similar offering memorandum to be required under used to obtain the Facility Agreement Debt Financing in order to ensure that such Required Information does not contain any untrue statement of material fact or omit to state any material fact necessary in order to make the statements contained therein not misleading.
(e) The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the consummation Debt Financing so long as such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company and its Subsidiaries.
(f) Parent shall, promptly upon request by the Company, reimburse the Company for all documented and reasonable out-of-pocket costs and expenses incurred by the Company or its Subsidiaries in connection with their cooperation as described in this Section 5.11. Parent and Merger Sub acknowledge and agree that the Company and its Affiliates and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under or in connection with, the arrangement of the Transactions, including the Financing or any alternative financing that Parent or Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement Sub may raise in connection with the consummation transactions contemplated by this Agreement if the Closing does not occur. Parent and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages suffered or incurred by them in connection with the arrangement of the TransactionsFinancing and any information utilized in connection therewith (other than information provided in writing by the Company or its Subsidiaries expressly for use in connection therewith). Notwithstanding anything to the contrary in this Section 5.11, including the MergerCompany shall not be required to become subject to any obligations or liabilities with respect to any document or agreement prior to the Effective Time.
(g) The obligations of the Company set forth in this Section 5.11 are the sole obligations of the Company with respect to the Debt Financing and no other provision of this Agreement shall be deemed to expand or modify such obligations.
Appears in 2 contracts
Sources: Merger Agreement (Southeastern Grocers, LLC), Merger Agreement (Winn Dixie Stores Inc)
Financing. (a) Subject Purchaser may, at its option, obtain one or more financing commitment letters (each, a "Commitment Letter") in a customary form that provide for all or a portion of the amount of proceeds as contemplated by the Debt Financing Letter as in effect on the date hereof; provided that the aggregate amount of proceeds from the Debt Financing Letter (including any Commitment Letter) shall provide for at least the same amount of proceeds to Purchaser as the terms and conditions Debt Financing Letter as in effect on the date hereof. Any Commitment Letter shall include a termination date not earlier than the one-year anniversary of the date of execution of this Agreement. Any Commitment Letter shall be made by some or all of the lenders that are parties to the Debt Financing Letter as in effect on the date hereof or by another national financial institution of similar repute of the lenders that are party to the Debt Financing Letter as in effect on the date hereof.
(b) Purchaser agrees to notify Seller if, each of Parent and Merger Sub at any time prior to the Closing Date, (i) the Debt Financing Letter shall, to the extent applicable, expire or be revoked or otherwise terminated for any reason or (ii) any financing source that is a party to the Debt Financing Letter notifies Purchaser that such source no longer intends to provide financing to Purchaser. Purchaser shall use its reasonable best efforts to consummate the Equity Financing at or prior remedy any matter referred to the Effective Time.
(b) Parent shall give the Company prompt notice in clause (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon of the receipt of immediately preceding sentence as soon as reasonably practicable; provided that Purchaser shall not be required to enter into any written notice from any party financing commitments or understandings in an aggregate amount materially different, or on terms less beneficial to a New Sponsor Equity Commitment Letter with respect to any threatened breach of Purchaser in any material provision of such New Sponsor Equity Commitment respect, than those set forth in the term sheets attached to the Debt Financing Letter or threatened termination of any such New Sponsor Equity Commitment Letteras in effect on the date hereof.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent If Purchaser has obtained a Commitment Letter and the Surviving Company benefit from Closing has not occurred on or before the existing lending relationships termination of the Group Companies to the extent requested by Parent. Neither the Company nor any of such Commitment Letter, Purchaser will use its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption will provide Seller with a copy of, a new Debt Financing Letter that provides for at least the same amount of financing as such Commitment Letter and succession tofor other terms and conditions reasonably satisfactory to Purchaser and, to the Company’s obligations under extent the 2022 Indenture terms and conditions are materially less beneficial to Seller than those contained in the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by term sheets attached to the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.Debt Financing Letter,
Appears in 2 contracts
Sources: Stock Purchase Agreement (Enron Corp/Or/), Stock Purchase Agreement (Enron Corp/Or/)
Financing. (ai) Subject Parent has delivered to the Company correct and complete copies of (x) an executed commitment letter among Parent and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA and (y) an executed commitment letter among TerraForm Power Operating, LLC and ▇▇▇▇▇▇▇ Sachs Bank USA,(each document in (x) and (y), including any related exhibits, schedules, annexes, supplements and other related documents), each dated on or about the date of this Agreement (as amended, modified, supplemented, replaced or extended from time to time after the date of this Agreement in compliance with this Agreement, the “Debt Financing Commitments”), from each of the financing sources identified therein (collectively, the “Debt Financing Sources”), pursuant to which the Debt Financing Sources have committed, subject to the terms and conditions thereof, to provide debt financing in the amounts set forth therein for the purpose of funding the transactions contemplated by this Agreement and the Affiliate Sale (collectively, the “Debt Financing”), together with a customarily redacted fee letter from the Debt Financing Sources related to the Debt Financing (the “Fee Letter”).
(ii) Except for the Fee Letter or as expressly set forth in the Debt Financing Commitments, as of the date of this Agreement, each there are no side letters or other agreements, Contracts or written arrangements to which Parent or any of its affiliates is a party related to the funding or investing, as applicable, of the Debt Financing which could reasonably be expected to adversely affect the availability of the Debt Financing contemplated by the Debt Financing Commitments. Assuming satisfaction of the conditions set forth in Section 6.01 (to the extent any such condition is a condition under the control of the Company) and Section 6.03, Parent does not have any reason to believe, as of the date of this Agreement, that it or any of its subsidiaries or affiliates will be unable to satisfy all conditions to be satisfied by it, its subsidiaries and its controlled affiliates with respect to any of the Debt Financing Commitments at the time it, its subsidiaries and its affiliates is required to consummate the Closing hereunder or that the Debt Financing will not be available to Parent or its affiliates party thereto at the Closing, including any reason to believe that any of the Debt Financing Sources will not perform their respective funding obligations under the Debt Financing Commitments in accordance with their respective terms and conditions.
(iii) As of the date hereof, there are no conditions precedent or other contingencies (including pursuant to any “flex” provisions) related to the funding of the full amount of the Debt Financing pursuant to the Debt Financing Commitments, other than as expressly set forth in the Debt Financing Commitments. Assuming the Debt Financing is funded in accordance with the Debt Financing Commitments, the net proceeds contemplated by the Debt Financing Commitments, together with other financial resources of Parent, whether directly held or available for use by Parent, and its controlled affiliates including cash on hand and the proceeds of loans under existing credit facilities of Parent or its controlled affiliates on the Closing Date and funds that will be provided by controlled affiliates of Parent pursuant to the Affiliate Sale Agreement, in the aggregate, shall provide Parent and Merger Sub shall use its reasonable best efforts to consummate with cash proceeds on the Equity Closing Date sufficient for the satisfaction of all of Parent’s and Merger Sub’s payment obligations under this Agreement and under the Debt Financing at or prior to Commitments, including the Effective Time.
(b) Parent shall give the Company prompt notice (i) upon becoming aware payment of any breach amounts required to be paid pursuant to Article II, any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation in connection with the Merger and the Debt Financing and any material provision of any New Sponsor Equity Commitment Letter indebtedness required to be repaid, redeemed, retired, canceled, terminated or termination of any New Sponsor Equity Commitment Letter by any party thereto or otherwise satisfied in connection with the Merger (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, including all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company and its subsidiaries required to be repaid, redeemed, retired, canceled, terminated or otherwise satisfied in connection with the Merger).
(iv) As of the date of this Agreement, the Debt Financing Commitments are in full force and effect and constitute valid and binding obligations of Parent and any of its affiliates party thereto and, to the knowledge of Parent, each other party thereto, enforceable in accordance with their terms against Parent and any of its affiliates party thereto and, to the knowledge of Parent, each other party thereto (except as such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or hereafter in effect, relating to creditors’ rights generally, and general equitable principles) and, as of the date of this Agreement, no event has occurred that, with or without notice, lapse of time, or both, would reasonably be expected to constitute a default or breach or a failure to satisfy a condition precedent on the part of Parent or any affiliate of Parent or, to the knowledge of Parent, any other party thereto under the terms and conditions of the Debt Financing Commitments. Parent (or its applicable affiliate) has paid in full any and all commitment fees or other fees required to be paid pursuant to the terms of the Debt Financing Commitments and the Fee Letters on or before the date of this Agreement. As of the date hereof, (i) none of the Debt Financing Commitments or Fee Letters has been modified, amended or otherwise altered (and no such modification, amendment or alteration is contemplated by Parent or, to the knowledge of Parent, any other party thereto) and (ii) none of the respective commitments under any of the Debt Financing Commitments have been withdrawn, terminated or rescinded (and no such withdrawal, termination or recission is contemplated by Parent or, to the knowledge of Parent, any other party thereto).
(v) Neither Parent nor Merger Sub is entering into this Agreement or the Debt Financing Commitment with the intent to hinder, delay or defraud either present or future creditors. Assuming (i) satisfaction of the conditions to Parent’s obligation to consummate the Merger and (ii) the payment of the aggregate Merger Consideration payable to the holders of Company Common Stock and equity awards pursuant to Article II, payment of all amounts required to be paid in connection with the consummation of the TransactionsMerger and the other transactions contemplated hereby, including indebtedness incurred pursuant to the issuance of the Convertible Notes pursuant to the Merger, and payment of all related fees and expenses, each of Parent and the Surviving Corporation will be Solvent as of the Effective Time and immediately after the consummation of the transactions contemplated hereby. For the purposes of this Agreement, the term “Solvent” when used with respect to any person, means that, as of any date of determination (a) the amount of the “fair saleable value” of the assets of such person will, as of such date, exceed (i) the Company obtaining approval value of (A) an increase all “liabilities of such person, including contingent and other liabilities,” as of such date, as such quoted terms are generally determined in the size accordance with applicable laws governing determinations of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board insolvency of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Timedebtors, and (ii) the Company using commercially reasonable efforts to ensure amount that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) will be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing probable liabilities of such person on its existing debts (including entry into any agreementcontingent and other liabilities) or would be effective prior to as such debts become absolute and mature, (b) such person will not have, as of such date, an unreasonably small amount of capital for the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence operation of the Effective Timebusinesses in which it is engaged or proposed to be engaged following such date, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i(c) through (iii).
(d) The Company shall use reasonable best efforts such person will be able to obtainpay its liabilities, execute including contingent and deliver such documents or instruments other liabilities, as may be required they mature. For purposes of this definition, “not have an unreasonably small amount of capital for the Surviving Company’s due assumption of, operation of the businesses in which it is engaged or proposed to be engaged” and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement“able to pay its liabilities, including (i) customary closing certificates contingent and other similar documents liabilities, as may they mature” means that such person will be reasonably requested by the trustee of the 2022 Notes able to generate enough cash from operations, asset dispositions or refinancing, or a combination thereof, to meet its obligations as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Mergerthey become due.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Sunedison, Inc.), Agreement and Plan of Merger (Vivint Solar, Inc.)
Financing. (a) Subject Buyer will promptly notify Seller of any proposal by any of the financial institutions party to the Debt Financing Commitment Letter to withdraw, terminate or make a material change in the amount or terms of the Debt Financing Commitment Letter. In addition, upon Seller's reasonable request, Buyer shall advise and conditions update Seller, in a level of this Agreementdetail reasonably satisfactory to Seller, each with respect to the status, proposed closing date and material terms of Parent and Merger Sub the proposed Debt Financing. Buyer shall use its reasonable best efforts not consent to consummate any amendment, modification or early termination of any Equity Financing Commitment Letter or the Debt Financing Commitment Letter that is reasonably likely to impair materially the Equity Financing at or prior to the Effective TimeDebt Financing.
(b) Parent Buyer shall, and shall give cause its Affiliates to, use all commercially reasonable efforts to (1) maintain the Company prompt notice effectiveness of the Debt Financing Commitment Letter, (i2) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter enter into definitive documentation with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity the Debt Financing on the terms contained in the Debt Financing Commitment Letter, (3) satisfy all funding conditions to the Debt Financing set forth in the definitive documentation with respect to the Debt Financing, (4) cause to be made available to Buyer, on or prior to the first anniversary of the Dexter Closing, the Debt Financing in an aggregate principal amount equal to the principal amount of the Debt Financing, and (5) perform its obligations under the Financing Commitments, including its obligations to agree to changes in the structure, terms and pricing contained in the Financing Commitments (it being understood that such obligations shall not include any obligation to cause any of its Affiliates to increase the amount of their Equity Financing).
(c) Each party hereto shall provideAt Seller's request, and shall cause each 60 Business Days following the satisfaction or waiver of its Subsidiaries and each of Buyer's conditions in Article VII (other than conditions that, by their respective Representatives nature, are to provide, all cooperation as may be reasonably required with respect to satisfied on the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (BClosing Date), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries Buyer shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon fund the Closing (including entry into any agreement) or would be effective prior to Purchase Price by drawing on the Effective Time. If this Agreement is terminated "Senior Subordinated Facility" and the "Senior Unsecured Credit Facility"(as such terms are defined in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iiiDebt Financing Commitment Letter).
(d) The Company Qwest Parties shall use provide and shall cause their Affiliates to provide, reasonable best assistance to Buyer's efforts to obtainobtain the Debt Financing (including, execute subject to Section 5.10(c), efforts to obtain high yield bond financing as part of the Debt Financing), including facilitating customary due diligence and deliver such documents arranging for senior officers of Seller to meet with prospective lenders in customary presentations or instruments as may be required for to participate in customary road shows, in each case upon Buyer's request with reasonable prior notice and at Buyer's cost and expense. At Buyer's cost and expense, the Surviving Company’s due assumption ofQwest Parties shall, and succession shall cause their Affiliates to, use commercially reasonable efforts to cause their respective accountants and attorneys to provide customary assistance in such financing. In the Company’s obligations event of a registered public offering or an offering in accordance with Rule 144A under the 2022 Indenture Securities Act of the debt or equity securities of Company or its Affiliates, the Qwest Parties will, upon Buyer's request with reasonable prior notice and at Buyer's cost and expense, use their commercially reasonable efforts to cause KPMG LLP to deliver to Company and its Affiliates and the Facility Agreementunderwriters in any such offering a letter covering such matters as are reasonably requested by Company or its Affiliates or such underwriters, including as the case may be, and as are customarily addressed in accountants' "comfort letters," and to provide their consent to the references to them as experts and the inclusion in any applicable filings of their auditor's reports. Buyer acknowledges that (i) customary closing certificates and other similar documents as may be reasonably requested the assistance provided by the trustee Qwest Parties and their Affiliates, officers, employees and representatives are being provided at the request of Buyer, and (ii) none of the 2022 Notes Qwest Parties shall have any liability to lenders or as prospective lenders in connection with the activities contemplated by this Section 5.10(d). Buyer shall indemnify and hold harmless the Qwest Parties from and against any Losses resulting from any assistance or activities provided pursuant to this Section 5.10. The ▇▇▇▇▇▇ 38 EXECUTION provisions of this Section 5.10(d) (including the indemnity provisions) shall not affect any rights of Buyer under Section 9.1.
(e) The Parties agree and acknowledge that up to $217,000,000 of additional equity of Buyer in excess of the amounts committed in the ▇▇▇▇▇▇ Equity Financing Commitment Letter may be required under the Facility Agreement in connection with the consummation terms and conditions of the TransactionsDebt Financing Commitment Letter to consummate the Transactions (such amount as is required, including the Merger and "ADDITIONAL EQUITY"). Buyer agrees to use commercially reasonable efforts to obtain equity commitments for the Additional Equity (provided that nothing herein shall (i) obligate Buyer or its Affiliates to sell securities on terms less favorable than those terms received by the Persons that have provided the ▇▇▇▇▇▇ Equity Financing Commitment Letter, (ii) customary legal opinions obligate Buyer or its Affiliates to conduct a public offering for equity securities, or (iii) obligate Affiliates of Buyer to contribute additional equity other than as are required by provided in the 2022 Indenture ▇▇▇▇▇▇ Equity Financing Commitment Letter). From the date hereof until 30 days after the Dexter Closing Date, Seller shall have the right to commit to provide all or the Facility Agreement in connection with the consummation a portion of the TransactionsAdditional Equity on the same terms and conditions as the equity provided for in the ▇▇▇▇▇▇ Equity Financing Commitment Letter (and on such other terms as specified in Exhibit R) provided, including however, that Seller shall in no event be entitled to own equity securities in an amount greater than the Merger.Seller Common Equity Limitation. Such commitment by Seller shall be evidenced by an equity commitment letter containing substantially the same terms and conditions as the Equity Financing Commitment Letter. From and after 30 days after the Dexter Closing Date, Buyer shall be free to enter into a binding commitment with third parties or Affiliates of Buyer for the Additional Equity (or such lesser amount of Additional Equity that remains after giving effect to amounts subscribed for by Seller); provided that Seller shall be offered the right to provide up to twenty-five percent (25%) of such offered Additional Equity on the most favorable terms and conditions on which any equity has been sold to such third parties and provided that Seller shall in no event be entitled to own equity securities in an amount greater than the Seller Common Equity Limitation. From and after a date 30 days preceding the Termination Date, Seller shall have the right to provide the entire amount of any remaining Additional Equity not subscribed for as of such date on the most favorable terms and conditions on which any equity has been sold (such amount committed by Seller during this period being referred to as the "FINAL ADDITIONAL EQUITY COMMITMENT"), whether as Additional Equity or pursuant to the terms of the ▇▇▇▇▇▇ Equity Financing Commitment Letter (and on such other terms as specified in Exhibit R); provided that Seller shall in no event be entitled to own equity securities in an amount greater than the Seller Common Equity Limitation. Any Additional Equity subscribed for by Seller in excess of the Seller Common Equity Limitation shall be provided in Permissible Preferred Stock (as defined below). Notwithstanding anything herein to the contrary, Buyer (through Affiliates or third parties) shall up until the Closing Date have the right to provide Additional Equity in such amounts as necessary to prevent or limit the issuance of Permissible Preferred Stock to satisfy the required Additional Equity. If Seller subscribes for Additional Equity pursuant to this Section 5.10(e) ("SELLER ADDITIONAL EQUITY") and Buyer exercises its right pursuant to Section 10.5 to assign its rights and obligations under this Agreement to a wholly-owned subsidiary of Buyer, then (i) such wholly-owned subsidiary will also assume Buyer's obligations to deliver the Seller Additional Equity to Seller, (ii) Buyer shall contribute the Seller Additional Equity to such wholly-owned subsidiary, and (iii) such wholly-owned subsidiary shall deliver the Seller Additional Equity (and the Closing Purchase Price) to Seller in exchange for the LLC Interests and the cash price for the Seller Additional Equity. Seller shall have the right to assign all or a ▇▇▇▇▇▇ 39 EXECUTION
Appears in 2 contracts
Sources: Purchase Agreement (Dex Media West LLC), Purchase Agreement (Dex Media Inc)
Financing. (a) Subject Acquiror and Merger Sub shall take, or cause to be taken, as promptly as practicable after the date hereof, all actions, and to do, or cause to be done, all things necessary, proper or advisable (including enforcing its rights under the Subscription Agreements), on or prior to the Closing Date, to consummate the purchases contemplated by the Subscription Agreements on the terms and conditions of described or contemplated therein, including using its reasonable efforts to (i) comply with its respective obligations under the Subscription Agreements, (w) maintain in effect the Subscription Agreements in accordance with the terms and conditions thereof, (x) satisfy on a timely basis all conditions and covenants applicable to Acquiror set forth in the applicable Subscription Agreements within its control, (y) consummate the PIPE Investment when required pursuant to this Agreement, and (z) enforce its rights under the Subscription Agreements to cause the Subscribers to pay to (or as directed by) Acquiror the applicable purchase price under each Subscriber’s applicable Subscription Agreement in accordance with its terms. Acquiror shall give the Company prompt written notice upon (A) becoming aware of Parent any breach or default by any party to any of the Subscription Agreements or any termination (or purported termination) of any of the Subscription Agreements, (B) the receipt of any written notice or other written communication from any party to any Subscription Agreement with respect to any actual, potential or claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by any party to any Subscription Agreement or any provisions of any Subscription Agreement and Merger Sub (C) if Acquiror does not expect to receive all or any portion of the PIPE Investment Amount on the terms, in the manner or from the sources contemplated by the Subscription Agreements. Acquiror shall not, without the prior written consent of the Company, amend, modify, supplement or waive (or permit any waiver of) any provision of, or terminate or abandon its plans with respect to, or provide consent to amend, modify, supplement, waive, assign or terminate any provision or remedy under, or any replacements of, any Subscription Agreement.
(b) If all or any portion of the PIPE Investment becomes unavailable, (i) Acquiror shall promptly notify the Company, (ii) Acquiror and the Company shall mutually cooperate in good faith and Acquiror and the Company shall promptly use its reasonable best efforts to promptly obtain the PIPE Investment or such portion of the PIPE Investment from alternative sources in an amount, when added to any portion of the PIPE Investment that is available, equal to the PIPE Investment Amount (any alternative source(s) of financing, “Alternative PIPE Investment”) and (iii) in the event that Acquiror is able to obtain any Alternative PIPE Investment, subject to the prior written consent of the Company (in its sole discretion), Acquiror shall use its reasonable best efforts to consummate enter into a new subscription agreement (each, an “Alternative Subscription Agreement”) that provides for the Equity Financing subscription and purchase of Acquiror Common Stock at or prior to $10.00 per share and containing terms and conditions not less favorable in the Effective Time.
(b) Parent shall give aggregate from the standpoint of Acquiror and the Company prompt notice than those in the Subscription Agreements entered into as of the date hereof (i) upon becoming aware as determined by the Company (in its sole discretion)). In such event, the term “PIPE Investment” as used in this Agreement shall be deemed to include any Alternative PIPE Investment, the term “Subscription Agreements” as used in this Agreement shall be deemed to include any Alternative Subscription Agreement and the term “PIPE Acquiror” as used in this Agreement shall be deemed to include any Person that is subscribing for Acquiror Common Stock under any Alternative Subscription Agreement. For the avoidance of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall providedoubt, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, if all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness portion of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving CompanyPIPE Investment or Alternative PIPE Investment becomes unavailable, in each case of clauses (A) and (B), effective as of immediately prior subject to the Effective Time, and (ii) prior written consent of the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit (in its sole discretion) Acquiror may utilize deposits, proceeds or any other amounts from the existing lending relationships of the Group Companies Trust Account and, to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior acceptable to the Effective Time or (y) be required Company, any additional third party financing to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with satisfy its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)financing obligations hereunder.
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 2 contracts
Sources: Merger Agreement (Spring Valley Acquisition Corp.), Merger Agreement (Spring Valley Acquisition Corp.)
Financing. (a) Subject Buyer, Holdings and Merger Sub shall use their reasonable best efforts to (i) arrange for the Financing on the terms and conditions of this Agreementdescribed in the Commitment Letters; (ii) enter into definitive agreements with respect to the Financing; (iii) satisfy all conditions applicable to Buyer, each of Parent Holdings and Merger Sub in such definitive agreements that are within their control; and (iv) consummate the Financing no later than the earlier of (A) the last day of the Marketing Period and (B) the Final Date. In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letters for any reason, Buyer shall use its reasonable best efforts to consummate obtain alternative financing from alternative sources, as promptly as practicable following the Equity Financing at occurrence of such event, but in no event later than the earlier of (A) the last day of the Marketing Period and (B) the Final Date; provided that such obligation shall be limited to obtaining alternative financing on comparable or prior more favorable terms, in the aggregate, to Buyer than as contemplated by the Effective Time.
Commitment Letters (bas determined in the reasonable good-faith judgment of Buyer). Buyer shall promptly (but in any event within five (5) Parent Business Days) provide the Company with the documentation evidencing the alternative sources of financing and shall give the Company prompt notice (ibut in any event within five (5) upon Business Days) of it (or any of the Equity Sponsors or IAAI) becoming aware of any material breach by any party to the Commitment Letters or any termination of the Commitment Letters. Buyer shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange for the Financing (or replacements thereof), including providing the Company with information about the equity rollover and refinancing of IAAI as the Company may reasonably request, and shall not permit any material amendment or modification to be made to, or any waiver of any material provision or remedy under, the Commitment Letters (or replacements thereof) without first consulting with the Company. Without first obtaining the Company’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed), Buyer shall not directly or indirectly take any action that (x) would or would be reasonably expected to result in the Financing not being available at or prior to the earlier of any New Sponsor Equity Commitment Letter or termination (A) the last day of any New Sponsor Equity Commitment Letter by any party thereto the Marketing Period and (B) the Final Date, or (iiy) upon would have a Buyer Material Adverse Effect. For the avoidance of doubt, in the event (X) all or any portion of the Debt Financing structured as high yield financing has not been consummated; (Y) all closing conditions contained in Section 7.1, Section 7.2 and Section 7.3 (other than the actual delivery of the certificates described therein and the actual receipt of any written notice the proceeds from any party to a New Sponsor Equity the Debt Financing) have been satisfied; and (Z) the bridge facilities contemplated by the Debt Commitment Letter Letters (or alternative bridge financing obtained in accordance with respect to any threatened breach of any material provision this Agreement) are available on the terms and conditions described in the Debt Commitment Letters (or replacements thereof), then Buyer, Holdings and Merger Sub shall cause the proceeds of such New Sponsor Equity Commitment Letter or threatened termination bridge financing to be used to replace such high yield financing no later than the earlier of any such New Sponsor Equity Commitment Letter(A) the last day of the Marketing Period and (B) the Final Date.
(cb) Each party hereto The Company shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, provide to Buyer all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably required by Buyer (provided that such requested cooperation does not unreasonably interfere with respect to the Equity Financing or any debt financing or indebtedness ongoing operations of the Company in connection with the consummation and its Subsidiaries; and provided, further, that none of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar other fee prior to or incur any other liability in connection with the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective Financing prior to the Effective Time. If ) including, without limitation, (i) using reasonable best efforts to cause its officers and employees to be available, during normal working hours and upon reasonable notice, to meet with the Lenders or Equity Sponsors in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with rating agencies; (ii) using reasonable best efforts to assist with the preparation of disclosure materials customarily included in documents associated with this Agreement type of Financing and reasonably required in connection with the Financing; (iii) using reasonable best efforts to cause its independent accountants, consistent with their customary practice, to provide reasonable assistance and cooperation to Buyer, including, without limitation, accounting due diligence sessions, and providing consent to Buyer to use their audit reports relating to the Company and any “comfort letters,” in each case on customary terms and consistent with their customary practice in connection with the Financing; (iv) executing and delivering definitive financing documents, including pledge and security documents, subsidiary guarantees or other certificates, legal opinions of the Company’s counsel regarding customary corporate matters or documents as may be reasonably requested by Buyer and reasonably required in connection with the Financing (including certificates of the chief financial officer of the Company or any of its Subsidiaries with respect to solvency matters) and otherwise reasonably facilitating the pledging of collateral (including, without limitation, assisting Buyer in the preparation and negotiation of mortgages, granting such mortgages, assisting in obtaining title policies, resolving exceptions on such title policies which are objected to by the lenders of the Debt Financing); provided that no obligation of the Company or any of its Subsidiaries under any such agreement, document or pledge shall be effective until the Effective Time; (v) providing access to people and information as set forth in Section 6.3; (vi) using reasonable best efforts to obtain surveys and title insurance reasonably requested by Buyer and required in connection with the Financing; (vii) using reasonable best efforts to furnish to Buyer and its financing sources with the Required Financial Information and all other financial information regarding the Company reasonably requested by Buyer and required in connection with the Financing, including all financial statements and data of the type required by Regulation S-X and Regulation S-K, including audits thereof to the extent so required, and the other accounting rules and regulations of the SEC, that is terminated of the type and form customarily included in accordance a registration statement on Form S-1 (or any applicable successor form) under the Securities Act for a public offering to consummate the offering(s) of debt securities contemplated by the Debt Commitment Letters; (viii) taking all actions reasonably requested by Buyer and otherwise required in connection with the Financing to (A) permit the Lenders to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, consistent with customary practice in connection with the Financing; provided that no right of any Lender, nor obligation of the Company or any of its Subsidiaries, thereunder shall be effective until the Effective Time; (ix) entering into one or more credit or other agreements on terms reasonably satisfactory to Buyer as required in connection with the Financing immediately prior to the Effective Time; provided that the Company shall not be required to enter into any purchase agreement for any high-yield debt financing; provided, further, that no obligation of the Company or any of its Subsidiaries under such credit or other agreement shall be effective until the Effective Time; and (x) taking all corporate actions, subject to the occurrence of the Effective Time, Parent reasonably requested by Buyer and consistent with customary practice to permit the consummation of the Financing and the direct borrowing or incurrence of all of the proceeds of the Financing, including any high yield debt financing, by the Surviving Corporation immediately following the Effective Time. The Company and its counsel shall promptly reimburse be given reasonable opportunity to review and comment upon any private placement memoranda or similar documents, or any materials for rating agencies, that include information about the Company for or any reasonable and documented out-of-pocket costs incurred by it of its Subsidiaries prepared in connection with the Financing, and Buyer/Holdings/Merger Sub shall include in such memoranda, documents or other materials, comments reasonably proposed by the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company . If this Agreement is terminated for any reason, Buyer shall use reasonable best efforts to obtaincause the voiding, execute and deliver such termination and/or destruction of all documents executed by the Company or instruments as may be required for any of its Subsidiaries in connection with their cooperation in the Surviving Company’s due assumption of, and succession toFinancing. For the avoidance of doubt, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be obligation to reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement cooperate with Buyer in connection with the consummation arrangement of the Transactions, including Financing shall apply to the Financing solely with respect to the Merger and the other transactions contemplated thereby, and neither the Company or any of its Subsidiaries, nor any of their respective officers or directors shall be required to execute any certificate, representation letter or other certification, or to deliver, or cause to be delivered, any legal opinion that is not customary or would be unreasonable for the offering(s) of debt securities contemplated by the Debt Commitment Letters.
(c) All non-public information or otherwise Proprietary Information (as defined in the Confidentiality Agreement) regarding the Company obtained by any of the Buyer Parities or its Representatives pursuant to Section 6.13(b) shall be kept confidential in accordance with the Confidentiality Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, each of the Debt Commitment Letters and the Equity Commitment Letters may be superseded at the option of Buyer after the date of this Agreement but prior to the Effective Time by instruments (the “New Commitment Letters”) which replace the existing Debt Commitment Letters or the existing Equity Commitment Letters and/or contemplate co-investment by or financing from one or more other or additional parties; provided that (i) the New Commitment Letters do not decrease the aggregate Equity Financing as set forth in the Equity Commitment Letters delivered on the date hereof, (ii) customary legal opinions any new or substitute Equity Sponsors enter into guarantees with the Company on substantially the same terms as are required the Guarantee, (iii) the New Commitment Letters provide for bridge financing on comparable or more favorable terms, in the aggregate, to Buyer than the terms contemplated by the 2022 Indenture Debt Commitment Letters delivered on the date hereof, (iv) Buyer in good faith believes that the financing contemplated by the New Commitment Letters would not or would not reasonably be expected to result in the Facility Agreement in connection with Financing not being available at or prior to the consummation earlier of (A) the last day of the TransactionsMarketing Period and (B) the Final Date, including and (v) Buyer provides written notice to the MergerCompany of such an occurrence concurrently with notice of the same to the other Equity Sponsors or Lenders, as applicable. In such event, the terms “Commitment Letters,” “Equity Commitment Letters” and “Debt Commitment Letters” as used herein shall be deemed to include the New Commitment Letters to the extent then in effect, and the term “Equity Sponsors” as used herein shall be deemed to include any new or substitute equity sponsors; provided, further, that in the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letters delivered on the date hereof, the second sentence of Section 6.13(a), and not this Section 6.13(d) shall govern with respect to the terms of any replacement financing to be obtained after any portion of the Financing becomes unavailable as described therein.
Appears in 2 contracts
Sources: Merger Agreement (Adesa California, LLC), Merger Agreement (Adesa Inc)
Financing. (a) Subject Prior to the Closing, Parent and Merger Sub shall use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or desirable to arrange and consummate the Financing on terms and conditions no less favorable to Parent and Merger Sub than those described in or contemplated by the Commitment Letters and the Fee Letter (including any “market flex” provisions that are contained in the Fee Letter), including using reasonable best efforts to (i) satisfy on a timely basis (taking into account the anticipated timing of this Agreementthe Marketing Period) all conditions applicable to Parent or Merger Sub set forth in the Commitment Letters and the Fee Letter (including definitive agreements related thereto) that are within its control, each including the payment of any commitment, engagement or placement fees required as a condition to the Debt Financing, (ii) maintain in effect the Commitment Letters (subject to Parent’s right to amend, modify, supplement, restate, assign, substitute or replace the Commitment Letters in accordance herewith), comply with its obligations pursuant to the Commitment Letters, diligently enforce their rights under the Commitment Letters and, with respect to the Debt Commitment Letter, negotiate and enter into definitive agreements with respect thereto on terms and conditions no less favorable to Parent and Merger Sub than those described in or contemplated in the Debt Commitment Letter and the Fee Letter (including any “market flex” provisions contained in the Fee Letter), (iii) consummate the Financing at or prior to the Closing, (iv) ensure the participation by a Representative of Parent and Merger Sub in, and assistance by Representatives of Parent and Merger Sub with, the preparation of rating agency presentations, meetings with ratings agencies and meetings with prospective lenders and (v) comply with Merger Sub’s obligations under the Debt Commitment Letter and the Fee Letter. If funds in the amounts and on the terms set forth in a Debt Commitment Letter become unavailable to Parent or Merger Sub on the terms and conditions (including any “market flex” provisions contained in the Fee Letter) contemplated in the Debt Commitment Letter and the Fee Letter (other than as a result of the Company’s breach of this Agreement, or if the Company’s failure to perform would be the sole cause of the conditions set forth in Section 7.01 or Section 7.02 not to be satisfied), Parent and Merger Sub shall promptly notify the Company of such fact and shall use their reasonable best efforts to obtain as promptly as practicable alternative debt financing (the “Alternative Financing”) in amounts, when added with the Equity Financing, sufficient to consummate the Transactions, including, for the avoidance of doubt, payment of the Required Amount and that would not (i) include any conditions precedent to the Debt Financing that are not contained in the Debt Commitment Letter and the Fee Letter that would reasonably be expected to (1) make the funding of the Debt Financing (or the satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (2) materially delay or prevent the Closing and (ii) otherwise reasonably be expected to materially delay or prevent the Closing; provided that Parent and Merger Sub shall not be required to accept any Alternative Financing having terms and conditions (including “market flex” provisions) less favorable to Parent and Merger Sub than those in the Debt Commitment Letter and the Fee Letter; provided, further, that if Parent and Merger Sub proceed with such Alternative Financing, Parent and Merger Sub shall be subject to the same obligations with respect to such Alternative Financing as set forth in this Section 6.09(a) with respect to the Financing, and all references in this Agreement to the “Debt Financing”, “Financing”, “Debt Commitment Letter”, “Fee Letter” and “Commitment Letters” (and other like terms in this Agreement) shall be deemed to also include such Alternative Financing, as applicable. In the event all conditions applicable to the Commitment Letters have been satisfied or waived, Parent shall cause the Fund to fund the Equity Financing and shall use its reasonable best efforts to cause the Persons providing the Debt Financing to fund such Debt Financing required to consummate the Equity Financing at or prior to Transactions on the Effective TimeClosing Date.
(b) Upon written request of the Company, Parent shall keep the Company apprised (as promptly as possible, and in any event within forty-eight (48) hours) of material developments relating to the Financing. Parent shall give the Company prompt written notice of any material adverse change with respect to the Financing. Without limiting the generality of the foregoing, Parent shall give the Company prompt written notice and, in any event, within forty-eight (48) hours, (i) upon becoming aware of any breach breach, default, termination or repudiation by any party to any of the Commitment Letters or definitive agreements related to the Financing of which Parent or Merger Sub becomes aware, (ii) of the receipt of (A) any written notice or (B) other written communication, in each case from any Lender Related Party with respect to any (1) actual breach, default, termination or repudiation by any party to any of the Commitment Letters or definitive agreements related to the Financing of any provisions of the Commitment Letters or definitive agreements related to the Financing of which Parent or Merger Sub becomes aware or (2) material dispute or disagreement between or among any parties to the Commitment Letters or definitive agreements of which Parent becomes aware related to the Financing with respect to the obligation to fund any of the Financing or the amount of the Financing to be funded at the Closing and (iii) if at any time for any reason Parent believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions, in the manner or from the sources contemplated by the Commitment Letters or definitive agreements related to the Financing such that it would not have amounts sufficient to consummate the Merger and the other Transactions, including payment of the Required Amount. As soon as reasonably practicable, but in any event within forty-eight (48) hours of the date that the Company delivers to Parent a written request, Parent shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause (i), (ii) or (iii) of the immediately preceding sentence. Parent shall not replace, amend, supplement, modify or waive the Debt Commitment Letter or any provision of any New Sponsor Equity fee letter relating to the Debt Commitment Letter (it being understood that the existence or termination exercise of “market flex” provisions contained in the Fee Letter shall not constitute a replacement, amendment, supplement, modification or waiver of the Debt Commitment Letter), without the Company’s prior written consent (such consent not to be unreasonably withheld, or conditioned or delayed) if such replacement, amendment, supplement, modification or waiver (x) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing or similar fees) such that Parent would not have amounts sufficient to consummate the Merger and the other Transactions, including payment of the Required Amount, (y) amends the conditions precedent to the Debt Financing in a manner that adds additional conditions precedent to the Debt Financing, or otherwise expands, amends or modifies any New Sponsor Equity of the conditions precedent to the availability of the Debt Financing, in each case, in a manner that would reasonably be expected to (1) make the funding of the Debt Financing (or the satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (2) materially delay or prevent the Closing or (z) adversely impacts the ability of Parent or Merger Sub to enforce its rights against the other parties to the Debt Commitment Letter by any party thereto (as it may be replaced, amended, supplemented, modified or waived in accordance with this Section 6.09); provided that Parent and Merger Sub may replace, amend, supplement or modify the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities (iior titles with respect to such entities) upon that have not executed the receipt Debt Commitment Letter as of any written notice from any the date of this Agreement (it being understood that the aggregate commitments of the lenders party to a New Sponsor Equity the Debt Commitment Letter prior to such amendment, supplement or modification may be reduced in the amount of such additional party’s commitments) (provided that, except as provided for in the Debt Commitment Letter with respect to any threatened breach Additional Committing Lenders (as defined in the Debt Commitment Letter), no such addition shall relieve the original Committed Lenders of their obligations under the Debt Commitment Letter prior to the funding of the Debt Financing). Parent shall promptly provide to the Company true and complete copies of any material provision commitment letter and fee letter (which, in the case of a fee letter, may redact Permissible Redacted Terms) associated with a replacement Debt Financing or Alternative Financing as well as any amendment, supplement, modification or waiver of any Debt Commitment Letter or any related fee letter (which, in the case of a fee letter, may redact Permissible Redacted Terms), that is permitted hereunder.
(c) Parent shall not replace, amend, supplement, modify or waive or agree to replace, amend, supplement, modify or waive (in any case whether by action or inaction), any term of the Equity Commitment Letter without the prior written consent of the Company (such New Sponsor consent not to be unreasonably withheld, conditioned or delayed). Parent shall promptly (and in any event within one (1) Business Day) notify the Company of (i) the expiration or termination (or attempted or purported termination, whether or not valid) of the Equity Commitment Letter or threatened termination of (ii) any such New Sponsor refusal by the Fund to provide the full financing contemplated by the Equity Commitment Letter.
(cd) Each party hereto Prior to the Closing, the Company shall use its reasonable best efforts to provide, and shall to cause each of its the Company Subsidiaries and each of its and their respective Representatives to use their reasonable best efforts to provide, to Parent and Merger Sub, in each case at Parent’s sole cost and expense (subject to the expense reimbursement provision in the last sentence of this Section 6.09(d)), such cooperation as is customary and reasonably requested by Parent in connection with the arrangement of the Debt Financing or any customary high-yield non-convertible bonds being issued in lieu of all cooperation or any portion of the Debt Financing, including by:
(i) assisting in preparation for and participating (including causing the Company’s and Company Subsidiaries’ management teams, with appropriate seniority and expertise to participate) in a reasonable number of investor and lender meetings (including a reasonable and limited number of customary one on one meetings and calls that are requested in advance with or by the parties acting as lead arrangers, bookrunners or agents for, and prospective lenders and purchasers of, the Debt Financing), lender due diligence presentations, drafting sessions, road shows and presentations, including sessions with rating agencies in connection with the Debt Financing or any customary high-yield non-convertible bonds being issued in lieu of all or any portion of the Debt Financing at reasonable times and locations mutually agreed, and assisting Parent in obtaining ratings in connection with the Debt Financing or any customary high-yield non-convertible bonds being issued in lieu of all or any portion of the Debt Financing;
(ii) assisting Parent, Merger Sub and the Lender Related Parties with the preparation by Parent, Merger Sub and the Lender Related Parties of materials for rating agency presentations, lender presentations, high-yield road show presentations and offering memoranda, bridge teasers, private placement memoranda, bank information memoranda and similar marketing documents required in connection with the Debt Financing or any customary high-yield non-convertible bonds being issued in lieu of all or any portion of the Debt Financing; provided that (i) the Company’s obligation to provide information for such materials shall be limited to information about the Company and the Company Subsidiaries and (ii) Parent and Merger Sub shall be solely responsible for, the preparation of pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financial information (collectively, the “Debt Marketing Materials”), including (A) furnishing business and financial projections with respect to the Company on a consolidated basis reasonably requested by Parent or Merger Sub and (B) furnishing records, data or other information with respect to the Company and the Company Subsidiaries necessary to support any statistical information or claims relating to the Company and the Company Subsidiaries appearing in the Debt Marketing Materials;
(iii) executing and delivering as of (but not prior to) the Closing any pledge and security documents, other definitive financing documents for the Debt Financing or any customary high-yield non-convertible bonds being issued in lieu of all or any portion of the Debt Financing, or other certificates or documents and back up therefor and for legal opinions as may be reasonably required with respect requested by Parent (including (x) solely to the Equity Financing extent such Person has been appointed as chief financial officer or any debt financing treasurer (or indebtedness other comparable officer) of the Company Borrower (as defined in the Debt Commitment Letter) on the Closing Date, executing and delivering a certificate of the chief financial officer or treasurer (or other comparable officer) of the Borrower substantially in the form attached as Annex I to Exhibit E to the Debt Commitment Letter certifying the solvency, after giving effect to the Transactions, of the Borrower and its subsidiaries on a consolidated basis and (y) any certificate or other document reasonably requested by Parent as backup for legal opinions to be provided in connection with the consummation transactions contemplated by Section 6.12)) and otherwise reasonably facilitating the granting of guarantees and the Transactions, including (i) the Company obtaining approval pledging of collateral; provided that (A) an increase in the size none of the Company Board to such number as is requested documents or certificates shall be executed and/or delivered except in writing by Parent and connection with the Closing, (B) the election to effectiveness thereof shall be conditioned upon, or become operative after, the Company Board occurrence of the individuals who will serve as directors Closing (in the case of each of the Surviving Company, in each case of foregoing clauses (A) and (B), effective as other than the execution of immediately prior to the Effective Time, and (ii1) the Company using commercially reasonable efforts to ensure that authorization letters set forth in Section 6.09(d)(vi) below, (2) the Parent and representation letters required by the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it Company’s auditors in connection with the Company’s compliance delivery of “comfort letters” set forth in Section 6.09(d)(ix) below, (3) the prepayment, termination or redemption notices set forth in Section 6.09(d)(v) below, (4) a customary solicitation agent agreement in connection with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents any consent solicitation or instruments as may be required for change of control tender offer in respect of the Surviving Company’s due assumption of, and succession to2021 Notes, the Company’s obligations under 2023 Notes or the 2022 Indenture and 2025 Notes set forth in Section 6.12, (5) a customary dealer manager agreement in connection with any tender offer, exchange offer or change of control tender offer in respect of the Facility Agreement2021 Notes, including the 2023 Notes or the 2025 Notes set forth in Section 6.12, (i6) customary closing certificates and any certificate or other similar documents as may be document reasonably requested by the trustee of the 2022 Notes or Parent as may backup for legal opinions to be required under the Facility Agreement provided in connection with the consummation transactions contemplated by Section 6.12, (7) customary ancillary agreements and closing deliverables for any consent solicitation, tender offer, exchange offer, change of control tender offer, optional redemption, satisfaction and discharge or defeasance in respect of the Transactions2021 Notes, including the Merger and 2023 Notes or the 2025 Notes set forth in Section 6.12, (ii) customary legal opinions as are required 8) any approvals or authorizations by the 2022 Indenture board of directors (or equivalent bodies) of the Facility Agreement Company or any Company Subsidiary in connection with the consummation any consent solicitation, tender offer, exchange offer, change of the Transactionscontrol tender offer, including the Merger.optional redemption, s
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Anixter International Inc), Agreement and Plan of Merger (Anixter International Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall, and shall cause their respective Affiliates to, use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Financing on the terms (including the market “flex” provisions) set forth in the Financing Letters (or on other terms and conditions that are acceptable to Parent, subject to the Prohibited Financing Modifications) no later than the Closing Date, including by using reasonable best efforts to (i) maintain (and cause Topco and the Guarantor to maintain) in effect and comply with the Financing Letters and, to the extent entered into prior to the Closing, the definitive agreements relating to the Financing (the “Definitive Financing Agreements”) in a timely (taking into account the anticipated timing of the Closing and the Marketing Period) and diligent manner (subject to Parent’s or Merger Sub’s right to replace, restate, supplement, modify, assign, substitute, waive or amend the Financing Letters in accordance herewith), (ii) negotiate and enter into the Definitive Financing Agreements with respect to the Debt Financing on the terms (including the market “flex” provisions) and subject to the conditions set forth in the Debt Commitment Letters (or on other terms and conditions that are acceptable to Parent, subject to the Prohibited Financing Modifications), (iii) satisfy on a timely basis (taking into account the anticipated timing of the Closing and the Marketing Period) (or obtain a waiver of) all conditions applicable to (and within the control of) Parent and Merger Sub in the Financing Letters and, to the extent entered into prior to the Closing, the Definitive Financing Agreements, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the transactions contemplated by this Agreement, including the Merger, consummate the Financing and cause the Financing Sources, the Guarantor and the other Persons committing to fund the Financing to fund the Financing at the Closing, (v) enforce its rights under the Financing Letters and, to the extent entered into prior to the Closing, the Definitive Financing Agreements and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Financing Letters and, to the extent entered into prior to the Closing, the Definitive Financing Agreements. Without limiting the generality of the foregoing, in the event that all conditions contained in the Financing Letters or, to the extent entered into prior to the Closing, the Definitive Financing Agreements (other than the consummation of the Merger and those conditions that by their nature are to be satisfied or waived at Closing) have been satisfied, Parent shall use its reasonable best efforts to consummate cause the Financing Sources and the Guarantor to comply with their respective obligations thereunder, including to fund the Financing, including by enforcing its rights under the Financing Letters, if necessary. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Section 6.13 shall require, and in no event shall the reasonable best efforts of Parent or Merger Sub be deemed or construed to require, either Parent or Merger Sub to (x) seek the Equity Financing at from any source other than the Guarantor, or prior in any amount in excess of that contemplated by the Equity Commitment Letters, or (y) incur or pay any fees to obtain a waiver of any term of the Debt Commitment Letters or pay any material fees that are, in the aggregate, in excess of those contemplated by the Equity Commitment Letter or the Debt Commitment Letters (including any market “flex” provisions contained therein). Without limiting the generality of the foregoing, to the Effective Timeextent necessary in order to consummate the Closing on the Closing Date, Parent shall deliver a Pre-Marketing Notification (as defined in the Debt Commitment Letters) and exercise its rights to reallocate the commitments as among the facilities contemplated by the Debt Commitment Letters.
(b) Prior to the Closing Date, Parent and Merger Sub shall not, without the prior written consent of the Company, subject to the last sentence of this paragraph, agree to or permit any termination of or amendment, replacement, supplement or modification, or any waiver of, any provision or remedy under, the Financing Letters or, to the extent entered into prior to the Closing, the Definitive Financing Agreements if such termination, amendment, replacement, supplement, modification or waiver would (A) reduce the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount as compared to the fees and original issue discount contemplated by the Debt Commitment Letters on the date of this Agreement unless the amount of the Debt Financing or Equity Financing is increased by a corresponding amount) such that Topco, Parent or Merger Sub (without, for the avoidance of doubt, any use of the cash or available borrowing capacity of the Company or any of its Subsidiaries) would not have sufficient available funds necessary to pay the Required Amounts, (B) impose new or additional (or adversely modify any existing) conditions to the consummation of any portion of the Financing, in each case, in a manner that would reasonably be expected to make the funding of the Financing less likely to occur or prevent, hinder or delay the Closing, (C) adversely impact the ability of Parent or Merger Sub, as applicable, to enforce its rights against other parties to the Financing Letters or, to the extent entered into prior to the Closing, the Definitive Financing Agreements or (D) otherwise reasonably be expected to prevent or hinder or materially delay the Closing (the foregoing clauses (A) through (D), collectively, the “Prohibited Financing Modifications”). Notwithstanding the foregoing, any amendment, supplement or modification to effectuate any market “flex” terms contained in the Debt Commitment Letters and/or Redacted Fee Letters provided as of the date hereof or to add or replace lenders, lead arrangers, bookrunners, syndication agents or other similar entities (or titles with respect to such entities) thereto shall be permitted and shall not require written consent of the Company. Parent shall promptly deliver to the Company copies of any written amendment, modification, supplement, consent or waiver to or under any Financing Letter, any related Redacted Fee Letter (which may be redacted in a fashion consistent with the Redacted Fee Letters) or, to the extent entered into prior to the Closing, the Definitive Financing Agreements promptly upon execution thereof.
(c) Parent shall, upon the Company’s reasonable request, keep the Company informed on a reasonably prompt basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and, upon the Company’s reasonable request, provide to the Company complete, correct and executed copies of the material definitive documents for the Debt Financing. Parent and Merger Sub shall give the Company prompt written notice of (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter breach, default, termination, cancellation or termination of any New Sponsor Equity Commitment Letter repudiation by any party thereto to any of the Financing Letters or, to the extent entered into prior to the Closing, the Definitive Financing Agreements, of which Parent or Merger Sub becomes aware, (ii) upon the receipt by Parent or Merger Sub of any written notice or other written communication from any Financing Source or any party to a New Sponsor the Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size material breach, default, termination, cancellation or repudiation by any party to any of the Company Board Financing Letters or, to such number as is requested in writing by Parent and the extent entered into prior to the Closing, any Definitive Financing Agreements of any provisions of the Financing Letters or, to the extent entered into prior to the Closing, any Definitive Financing Agreements or (B) material dispute or disagreement between Parent and any Financing Sources or among any parties to any of the election Financing Letters or any definitive document related to the Company Board of the individuals who will serve as directors of the Surviving CompanyFinancing, in each case of clauses (A) and (B), effective as of immediately prior to regarding the Effective TimeFinancing, and (iiiii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of an event or development that could reasonably be expected to adversely impact the Effective Timeability of Parent or Merger Sub to obtain all or any portion of the Financing necessary to fund the Required Amount on the Closing Date. Additionally, Parent and Merger Sub shall promptly reimburse provide any information reasonably requested by the Company for relating to any reasonable and documented out-of-pocket costs incurred by it circumstance referred to in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)immediately preceding sentence, subject to applicable legal privilege or confidentiality obligations.
(d) The If all or any portion of the Debt Financing becomes unavailable on the terms and conditions (including any applicable market “flex” provisions) contemplated by the Debt Commitment Letters (other than (i) as a sole result of the Company’s breach of this Agreement or (ii) if and for so long as the Company is in breach of its obligations under Agreement and such breach would be the sole cause of the conditions set forth in Section 7.1 or Section 7.2 not to be satisfied) and such portion is necessary to fund the Required Amount on the Closing Date, (i) Parent shall promptly notify the Company in writing of such unavailability and the reason therefor and (ii) Parent and Merger Sub shall use their reasonable best efforts to arrange and obtain, execute as promptly as practicable, alternative financing from the same or alternative sources in an amount sufficient, together with the remaining available Financing to fund the Required Amount on the Closing Date (“Alternative Debt Financing”); provided that Parent shall not be required to arrange or obtain any Alternative Debt Financing having terms and conditions (including market “flex” provisions) that are less favorable to Parent and Merger Sub (or their respective Affiliates) than the terms and conditions set forth in the Debt Commitment Letters and the Redacted Fee Letters. Parent shall deliver to the Company forthwith if it obtains the same true and complete executed copies of any commitment letters (including related fee letters) with respect to any Alternative Debt Financing (which fee letters may be redacted in a fashion consistent with the Redacted Fee Letters).
(e) For purposes of this Agreement, references to (x) the “Financing” shall include the financing contemplated by the Financing Letters as permitted to be amended, modified, supplemented, waived or replaced by this Section 6.13 and any Alternative Debt Financing, (y) the “Debt Commitment Letters” shall include such documents as permitted to be amended, modified, supplemented, waived or instruments as may be required for replaced by this Section 6.13 and any commitment letter or other binding documentation with respect to any Alternative Debt Financing and (z) “Debt Financing” shall include the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested debt financing contemplated by the trustee of the 2022 Notes Debt Commitment Letters as permitted to be amended, modified, supplemented, waived or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger replaced by this Section 6.13 and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Mergerany Alternative Debt Financing.
Appears in 2 contracts
Sources: Merger Agreement (CD&R Associates VIII, Ltd.), Merger Agreement (Cornerstone Building Brands, Inc.)
Financing. (a) Subject Parent shall use its commercially reasonable best efforts to: (i) negotiate definitive agreements with respect to the Debt Financing on the terms and conditions contemplated by the Financing Commitments or, to the extent the financing contemplated by the Financing Commitments is not available to Parent, on terms that are not materially less favorable, in the aggregate, to Parent and the Company (as determined in the reasonable judgment of Parent, and with such determination based in part of the relevant closing conditions) than the terms of the Debt Financing Commitment and subject to Section 5.12(b); (ii) satisfy on a timely basis all conditions set forth in such Debt Financing Commitments applicable to Parent and Merger Sub that are within their control; (iii) obtain, at or prior to the Closing Date the financing necessary such that Parent and Merger Sub, in either case, will have at and after the Closing funds sufficient to pay all of the amounts payable under Article I of this Agreement, each Agreement or otherwise in connection with the Merger and related fees and expenses of the parties associated therewith; (iv) fully enforcing the Lender’s obligations (and the rights of Parent and Merger Sub) under the Debt Financing Commitment; and (v) fully enforcing the Sponsors’ obligations (and the rights of Parent and Merger Sub) under the Equity Financing Commitment. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitments, Parent shall use its commercially reasonable best efforts to arrange to obtain alternative financing from alternative sources on terms not materially less favorable, in the aggregate, to Parent (as determined in the reasonable judgment of Parent) as promptly as practicable following the occurrence of such event. Parent shall give the Company prompt notice of any material breach by any party to the Financing Commitments, of which Parent becomes aware, or any termination of the Financing Commitments.
(b) The Company shall use commercially reasonable efforts to cooperate, and to cause its Subsidiaries and Representatives to cooperate, with Parent and Representatives of Parent in connection with the Financing, including by: (i) furnishing Parent and its financing sources as promptly as practicable with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested in writing by Parent, including all financial statements and projections and other pertinent information required by the Debt Financing Commitment and requested in writing by Parent (other than information for which the Company is dependent on information to be provided by Parent to the Company in order to prepare such financial statements and projections, unless such information is provided to the Company by Parent or the Lender or any of their respective Representatives at least five (5) Business Days prior to the date required to be delivered by the Company) (all such information in this clause (i), the “Required Information”); (ii) participating in meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies; (iii) assisting with the preparation of materials for rating agency presentations, confidential information memoranda and similar documents required in connection with the Financing; (iv) executing and delivering any pledge and security documents, currency or interest hedging arrangements, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Parent or otherwise reasonably facilitating the pledging of collateral (provided that such documents will not take effect until the Effective Time); provided, however, nothing herein shall require such assistance to the extent it would unreasonably interfere with the business or operations of the Company or its Subsidiaries; provided, further, that notwithstanding the foregoing, no obligations of the Company, its Subsidiaries or their respective Affiliates or Representatives under any agreement, document or instrument executed or delivered by the Company, its Subsidiaries or their respective Affiliates or Representatives pursuant to the Company’s obligations under this Section 5.12(b) shall be effective until the Effective Time; provided, further, that nothing herein shall require such assistance to the extent it would require the Company to pay (or to agree to pay) any fees, reimburse any expenses, incur any liability or give any indemnities prior to the Effective Time for which it is not reimbursed or indemnified; provided, further, that if the Company in good faith reasonably believes it has delivered the Required Information at the time the Marketing would commence (assuming the Required Information had been delivered), it may deliver to Parent a written notice to that effect (stating when it believes it completed such delivery), in which case receipt of such Required Information shall be deemed to have been satisfied on the date of such notice for purposes of the commencement of the Marketing Period unless Parent in good faith reasonably believes the Company has not completed delivery of the Required Information and, within three (3) Business Days after the delivery of such notice by the Company, delivers a written notice to the Company to that effect (stating with reasonable specificity which Required Information the Company has not delivered).
(c) Neither Parent nor Merger Sub shall amend, modify, alter, waive, replace or agree to amend, modify, alter, waive or replace (in any case whether by action or inaction), any term of the Financing Commitments if such amendment, modification, waiver or replacement (x) reduces the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount of the Debt Financing unless the Equity Financing is increased by a corresponding amount) beyond what is contemplated under the Debt Financing Commitment (other than as a result of the exercise of any lender flex provisions contained in any fee letter entered into by Parent or Merger Sub in connection with such Debt Financing Commitment (provided that no such exercise shall result in a reduction of the aggregate committed amount of financing under the Debt Financing Commitment)) or (y) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Financing in a manner that would reasonably be expected to (I) delay or prevent the Closing Date, (II) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur or (III) adversely impact the ability of Parent or Merger Sub, as applicable, to enforce its rights against other parties to the Financing Letters or the definitive agreements with respect thereto, and shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange the Financing on the terms and conditions described in the Financing Commitments (including any lender flex provisions contained in any fee letter entered into by Parent or Merger Sub in connection with such Debt Financing Commitment), including using its reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis all conditions applicable to the Parent and Merger Sub to obtaining the Debt Financing at the Closing set forth therein that are within its control, (iii) enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Debt Financing Commitment (other than changes to such terms and conditions as a result of the exercise of any lender flex provisions contained in any fee letter or other changes that, in each case, do not reduce the aggregate committed amount of financing under, or the conditionality of, the Debt Financing Commitment) and provide copies of such definitive agreements to the Company; and (iv) upon satisfaction of the conditions set forth in the Financing Commitments, consummate the Equity Financing at or prior to the Effective Time.
(b) Parent shall give Closing. In the Company prompt notice (i) upon becoming aware of event any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness portion of the Company Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment (including any lender flex provisions contained in any fee letter entered into by Parent or Merger Sub in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board such Debt Financing Commitment and other that changes to such number as is requested in writing by Parent terms and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Companyconditions that, in each case case, do not reduce the aggregate committed amount of clauses financing under, or the conditionality of, the Debt Financing Commitment), the Parent shall promptly notify the Company (Aand in any event within one (1) Business Day thereof) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially shall use its reasonable best efforts to ensure that arrange to obtain alternative financing from alternative sources on terms and conditions no less favorable to the Parent and Merger Sub and in an amount sufficient to consummate the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to transactions contemplated hereby promptly following the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)such event.
(d) The Company shall use reasonable best efforts to obtain, execute Parent and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, Corporation shall take any and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be all actions reasonably requested necessary to ensure that any distributions by the trustee of Surviving Corporation to the 2022 Notes or as may be required under the Facility Agreement Company Shareholders in connection with this Agreement, if any, shall be made in compliance with the consummation of CCC and without any liability to the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture Indemnified Parties or the Facility Agreement in connection with Company Shareholders under the consummation CCC.
(e) At the Closing, Parent shall provide to Fenwick & West LLP, counsel to the Company, Federal Reserve Wire Network reference numbers reflecting the funding to Parent of amounts dispersed to Parent (or one or more of Parent’s Subsidiaries) pursuant to the Transactions, including the MergerFinancing.
Appears in 2 contracts
Sources: Merger Agreement (Sonicwall Inc), Merger Agreement (Sonicwall Inc)
Financing. (a) Subject Parent shall, and shall cause each Parent Subsidiary to, use reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, all things reasonably necessary or advisable to obtain funds sufficient to fund the Financing Amounts on or prior to the date on which the Merger is required to be consummated pursuant to the terms hereof, which may include the issuance and sale of senior unsecured notes and/or the entry into a committed term loan facility (any such (1) notes that have been funded and are not subject to an escrow arrangement, (2) notes that are subject to an escrow agreement, which shall have conditions to funding not less favorable than those set forth in the Debt Commitment Letter as of the date hereof and (3) committed term loan facility, which shall have conditions to funding not less favorable than those set forth in the Debt Commitment Letter as of the date hereof, collectively, the “Replacement Financing”)). In furtherance and not in limitation of the foregoing, Parent shall use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things reasonably necessary or advisable to obtain the proceeds of the Debt Financing on the terms and subject only to the conditions described in the Debt Commitment Letter on or prior to the date on which the Merger is required to be consummated pursuant to the terms hereof, including by (i) maintaining in effect the Debt Commitment Letter, (ii) negotiating and entering into definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) consistent with the terms and conditions of this Agreementcontained in the Debt Commitment Letter (including, each of as necessary, the “flex” provisions contained in any related fee letter) or with other terms agreed by Parent and Merger Sub shall use its reasonable best efforts to consummate the Equity Financing at or prior Parties provided that the conditions to the Effective Timeconsummation thereof are not more onerous than the conditions set forth in the Debt Commitment Letter as of the date hereof, without any Prohibited Modification, (iii) satisfying (or obtaining the waiver of) on a timely basis all conditions in the Debt Commitment Letter and the Definitive Agreements that are in Parent's of any Parent Subsidiary’s control and complying with its obligations thereunder and (iv) enforcing its rights under the Debt Commitment Letter. Parent shall pay, or cause to be paid, as the same shall become due and payable, all fees and other amounts under the Debt Commitment Letter and Definitive Agreements.
(b) Parent shall give the Company prompt notice or any Parent Subsidiary may (i) upon becoming aware of amend, modify, replace, assign or agree to any breach of any material provision of any New Sponsor Equity waiver under the Debt Commitment Letter or termination any Definitive Agreements without the prior written approval of the Company, provided, that neither Parent nor any New Sponsor Equity Parent Subsidiary shall, without the prior written consent of the Company (except if Parent has available sufficient cash on hand or cash from other funding sources pursuant to a Replacement Financing to fund the Financing Amounts) permit, consent to or agree to any amendment, replacement, supplement or modification to, or any waiver of, any provision or remedy under, the Debt Commitment Letter or the Definitive Agreements if such amendment, replacement, supplement, modification, waiver or remedy (A) adds new (or adversely modifies any existing) conditions to the consummation of all or any portion of the Debt Financing, (B) reduces the aggregate principal amount of the Debt Financing unless the aggregate amount of the Debt Financing following such reduction, together with cash on hand and cash available to Parent pursuant to a Replacement Financing, is sufficient to consummate the Merger and pay the other Financing Amounts (it being understood that any mandatory commitment reduction due to obtaining net proceeds of a debt or equity issuance, entry into a limited condition bank loan or obtaining net proceeds of certain asset sales in accordance with the terms of such Debt Commitment Letter (a “Replacement Financing Reduction”) shall be permitted), (C) adversely affects the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the Definitive Agreements as so amended, replaced, supplemented or otherwise modified or (D) would otherwise reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger and the other transactions contemplated by this Agreement (the effects described in clauses (A) through (D), collectively, the “Prohibited Modifications”); provided, that notwithstanding the foregoing, Parent or any party thereto Parent Subsidiary may modify, supplement or amend the Debt Commitment Letter to (1) add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement and (2) implement or exercise any “market flex” provisions contained in the Debt Commitment Letter or (ii) upon terminate the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Debt Commitment Letter or threatened any Definitive Agreement only if it has obtained Replacement Financing with net proceeds that, together with cash on hand, is sufficient to pay the Financing Amounts. In the event that new commitment letters and/or fee letters are entered into in accordance with any amendment, replacement, supplement, termination or other modification of any the Debt Commitment Letter permitted pursuant to this Section 6.12, such New Sponsor Equity new commitment letters and/or fee letters shall be deemed to be the “Debt Commitment Letter.
(c) Each party hereto ” for all purposes of this Agreement and references to “Debt Financing” herein shall provideinclude and mean the financing contemplated by the Debt Commitment Letter as so amended, and replaced, supplemented or otherwise modified, as applicable. Parent shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election promptly deliver to the Company Board copies of any amendment, replacement, supplement, termination, modification, waiver or replacement of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor Debt Commitment Letter and/or any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)Definitive Agreement.
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Tapestry, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its their reasonable best efforts to take, or cause to be taken, all actions and use their reasonable best efforts to do, or cause to be done, all things necessary or advisable to arrange the Debt Financing and to consummate the Equity Debt Financing at or prior to the Effective Time.
, including using reasonable best efforts to (bi) maintain in effect the Debt Commitment Letter; (ii) satisfy on a timely basis all of the conditions precedent set forth in the Debt Commitment Letter; (iii) negotiate, execute and deliver definitive documentation for the Debt Financing that reflects the terms contained in the Debt Commitment Letter (subject to any market flex provisions); and (iv) in the event that the conditions set forth in Sections 7.1 and 7.2 and the conditions precedent set forth in the Debt Commitment Letter have been satisfied or, upon funding would be satisfied, cause the financing providers to fund the full amount of the Debt Financing, except to the extent replaced with the Bond Financing. Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter breach or termination of any New Sponsor Equity Commitment Letter threatened material breach by any party thereto or (ii) upon to the receipt of any written notice from any party to a New Sponsor Equity Debt Commitment Letter with respect to any threatened of which Parent becomes aware. Without limiting Parent’s and Merger Sub’s other obligations under this Section 6.15, if a breach of any material provision the Debt Commitment Letter occurs, Parent shall (A) promptly notify the Company of such New Sponsor Equity Commitment Letter breach and (B) in consultation with the Company, use reasonable best efforts to obtain alternative financing, in an amount sufficient to make the payments to be made by Parent and Merger Sub at the Effective Time upon terms and conditions not materially less favorable to Parent or threatened termination Merger Sub, as promptly as practicable following the occurrence of such event. Without the Company’s prior written consent (which shall not be unreasonably conditioned, withheld or delayed), Parent shall not agree to or permit any such New Sponsor Equity amendment, replacement, reduction, supplement, or other modification of, or waive any of its material rights under, the Debt Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives if such amendment, replacement, supplement or other modification or waiver would reasonably be expected to provideprevent, all cooperation as may be reasonably required with respect to the Equity Financing materially delay, or any debt financing or indebtedness of the Company in connection with materially impede the consummation of the TransactionsDebt Financing (or would add any material additional conditions to the availability of the Debt Financing or any replacement financing); provided that, for the avoidance of doubt, Parent may (without the prior consent of the Company) replace and amend the Debt Commitment Letter to add lenders, lead arrangers, book runners, syndication agents, or similar entities that had not executed the Debt Commitment Letter as of the date of this Agreement or to reflect changes to the Debt Commitment Letter made pursuant to the terms set forth in the Fee Letter (as defined in the Debt Commitment Letter). Neither Parent nor Merger Sub shall consent to any assignment or rights or obligations under the Debt Commitment Letter (I) without the prior written approval of the Company, such approval not to be unreasonably withheld or (II) except for assignments under the terms of the Debt Commitment Letter. Parent and Merger Sub shall consult with and keep the Company reasonably informed of the status of their efforts to arrange the Debt Financing and the Bond Financing.
(b) Without limiting Parent’s other obligations under this Section 6.15, if the Marketing Period shall not have been completed by April 3, 2013, then unless the Bond Financing or Debt Financing shall have been previously consummated, Parent shall use its commercially reasonable efforts, including through the payment of commercially reasonable fees, to obtain an amendment to the Debt Commitment Letter on or prior to April 3, 2013 to provide that the “outside date” of “March 4, 2013, subject to one extension to June 3, 2013 to the extent that the Termination Date (as defined in the Acquisition Agreement on the date of this Commitment Letter) is extended to June 3, 2013 in accordance with the terms of the Acquisition Agreement” as set forth in the Debt Commitment Letter may be further extended, in the event that the Marketing Period shall have begun but not been completed by the Termination Date, by a number of days equal to the lesser of (i) twenty (20) days plus four (4) business days following the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, Termination Date and (ii) the Company using commercially reasonable efforts to ensure that number of days then remaining in the Parent and Market Period plus four (4) business days (such extended date, the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii“Extension Date”).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 2 contracts
Sources: Merger Agreement (Medicis Pharmaceutical Corp), Merger Agreement (Valeant Pharmaceuticals International, Inc.)
Financing. (a) Subject Parent shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Financing on the terms and conditions described in the Commitment Letter and in a timely manner, including (i) maintaining in effect the Commitment Letter, (ii) negotiating and entering into definitive agreements with respect to the Commitment Letter on terms and conditions contemplated by the Commitment Letter and (iii) satisfying on a timely basis all conditions to the funding of this Agreementthe Financing on the Closing Date applicable to Parent in the Commitment Letter and the definitive agreements with respect thereto and comply with its obligations thereunder. Parent shall have the right from time to time to amend, each replace, supplement or otherwise modify, or waive any of its rights under, the Commitment Letter and/or substitute other debt or equity financing for all or any portion of the Financing from the same and/or alternative financing sources, provided that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter and the definitive agreements with respect thereto that amends the Financing and/or substitution of all or any portion of the Financing shall not impose additional conditions precedent to the Financing as set forth in the Commitment Letter that could reasonably be expected to prevent or materially delay the consummation of the Transactions. Parent shall be permitted to reduce the amount of Financing under the Commitment Letter in its sole discretion, provided that Parent shall not reduce the Financing to an amount committed below the amount that is required, together with the financial resources of Parent and Merger Sub Sub, including cash on hand of Parent and the Company, to consummate the Merger. If any portion of the Financing becomes unavailable in the manner or from the sources contemplated in the Commitment Letter and such portion is reasonably required (taking into account cash on hand and other financial resources available to Parent) to fund the Merger Consideration, Parent shall use its reasonable best efforts to arrange and obtain alternative financing in an amount sufficient to consummate the Equity Financing at Transactions as promptly as reasonably practicable following the occurrence of such event. Parent shall promptly provide the Company with the documentation evidencing such alternative sources of financing, including all relevant agreements, other financing documents and any proposed amendments or prior to the Effective Time.
(b) Parent waivers thereto, and shall give the Company prompt notice (ibut in any event within five (5) upon becoming aware of any breach Business Days) of any material provision breach by any party to the Commitment Letter that becomes known to Parent or any termination of any New Sponsor Equity the Commitment Letter. Parent shall keep the Company reasonably informed on a current basis of the status of its effort to arrange the Financing.
(b) For the avoidance of doubt, if Parent fails to obtain the Financing contemplated by the Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party alternative financing, Parent shall continue to a New Sponsor Equity Commitment Letter with respect be obligated to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provideperform its obligations under this Agreement, including this Section 6.06, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect consummate the Merger on the terms contemplated hereby (subject only to the Equity Financing satisfaction or any debt financing or indebtedness waiver of the Company conditions set forth in connection with the consummation of the Transactions, including (iSection 7.01 and 7.02) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent unless and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If until this Agreement is terminated in accordance with Article VIII.
(c) In connection with the Financing, the Company shall use its terms prior commercially reasonable efforts to obtain, at Parent’s expense, an accountant’s comfort letter with respect to financial information relating to the occurrence of the Effective Time, Company that may be included in any offering memorandum used by Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for Financing. For the Surviving Company’s due assumption of, and succession toavoidance of doubt, the Company’s failure of the Company to obtain a comfort letter shall not be deemed to be a breach of this Agreement and Parent shall continue to be obligated to perform its obligations under the 2022 Indenture and the Facility this Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including its obligation to consummate the Merger on the terms and (ii) customary legal opinions as are required by subject to the 2022 Indenture or the Facility Agreement conditions contained in connection with the consummation of the Transactions, including the Mergerthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Arbitron Inc), Agreement and Plan of Merger (Nielsen Holdings N.V.)
Financing. (a) Subject Parent and Merger Sub will use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper and advisable to arrange and obtain the proceeds of the Financing on the terms and conditions described in the Commitment Letter, including using reasonable best efforts to (i) maintain in full force and effect the Commitment Letter, (ii) negotiate definitive financing agreements with respect to the Financing on terms and conditions that are not materially less favorable to Parent and Merger Sub than the terms and conditions contemplated by the Commitment Letter and enter into, on or prior to the Closing Date, definitive financing agreements with respect to the Financing, and promptly upon execution thereof provide executed copies of this Agreementsuch definitive agreements to the Company, each (iii) satisfy on a timely basis (or obtain the waiver of) (taking into account the expected timing of the Closing) all conditions and covenants, and otherwise comply with all terms and conditions, applicable to Parent and Merger Sub in the Commitment Letter and such definitive agreements within their control, (iv) consummate the Financing at or prior to Closing, and (v) enforce their rights under the Commitment Letter. In the event that all conditions to the Commitment Letter have been satisfied or, upon funding will be satisfied, Parent and Merger Sub shall use its their reasonable best efforts to cause the Financing Sources and the other Persons providing or committing to provide the Financing to comply with their obligations under the Commitment Letter and the definitive financing agreements entered into in connection with the Financing and to fund on or before the Closing Date the Financing required to consummate the Equity Merger and the other transactions contemplated by this Agreement (including taking enforcement action, to cause the Financing at Sources and the other Persons providing or prior committing to provide the Financing to fund such Financing). Parent and Merger Sub will keep the Company informed on a reasonably current basis of the status of their efforts to arrange the Financing and to satisfy the conditions thereof, including (A) promptly notifying the Company of (1) any actual, threatened or alleged material breach or default by any party to the Effective TimeCommitment Letter or any definitive financing agreement entered into in connection with the Financing, if such breach or default would reasonably be expected to affect the timely availability of, or the amount of, the Financing and (2) the receipt by any of Parent or Merger Sub or any of their respective Representatives of any notice or other communication from any Financing Source or any other Person with respect to any material dispute or disagreement between or among any parties to any Commitment Letter or any definitive financing agreement entered into in connection with the Financing, if such dispute or disagreement would reasonably be expected to affect the timely availability of, or amount of, the Financing, and (B) upon the Company’s reasonable request, advising and updating the Company, in a reasonable level of detail, with respect to the status (and any material developments concerning such status) and proposed funding date thereunder. Without the prior written consent of the Company, Parent and Merger Sub will not agree, permit, or otherwise consent, to any amendment of, supplement or modification to, or waiver under, the Commitment Letter or the definitive agreements relating to the Financing if such amendment, supplement, modification or waiver (x) would reduce the aggregate cash amount of proceeds of the Financing (including by changing the amount of fees to be paid or original issue discount of the Financing), (y) would change or impose new or additional conditions or otherwise expands or amends any of the conditions to the receipt of the Financing from those set forth in the Commitment Letter on the date of this Agreement or (z) would otherwise reasonably be expected to (1) prevent or materially delay the Closing Date or (2) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur, (collectively, the “Restricted Commitment Letter Amendments”), other than a waiver of any closing conditions by lender(s) or their agents. Parent and Merger Sub may amend the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as of the date of this Agreement, if the addition of such additional parties, individually or in the aggregate, would not result in the occurrence of a Restricted Commitment Letter Amendment. In addition, Parent and Merger Sub shall not permit or consent to any waiver of any remedy under the Commitment Letter or to any early termination of the Commitment Letter. For purposes of this Agreement, references to the “Commitment Letter” shall include such documents as permitted or required by this Section 5.11 to be amended, modified, supplemented or waived, in each case from and after the date of such amendment, supplement, modification or waiver.
(b) If, notwithstanding the use of reasonable best efforts by Parent shall give and Merger Sub to satisfy their obligations under this Section 5.11, any of the Company prompt notice Financing or the Commitment Letter (or any definitive financing agreement relating thereto) expire or are terminated or otherwise become unavailable prior to the Closing, in whole or in part, for any reason, Parent and Merger Sub will (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon promptly notify the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision Company of such New Sponsor Equity Commitment Letter expiration, termination or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, unavailability and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of use its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts promptly to obtainarrange for alternative financing (which will be in an amount sufficient to pay, execute when added to the other resources of Parent and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession toother financing arrangements, the Company’s obligations under Required Amount) from other sources on terms and conditions not materially less favorable, taken as a whole, to Parent and Merger Sub than the 2022 Indenture terms and conditions of the Facility Agreement, including Financing contained in the Commitment Letter to replace the Financing contemplated by such expired or terminated or unavailable commitments or agreements (i) customary closing certificates “Alternative Financing”). Copies of each commitment letter and other similar documents as may agreement relating to the Alternative Financing (the “Alternative Commitment Letters”) shall be reasonably requested by promptly provided to the trustee Company (except for customary engagement letters and fee letters, redacted copies of the 2022 Notes or as may which fee letters will be required under the Facility delivered). If applicable, references in this Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.to
Appears in 2 contracts
Sources: Merger Agreement (Rockwood Holdings, Inc.), Merger Agreement (Albemarle Corp)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to consummate the Equity Financing at or prior to the Effective Time.
(b) Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company Spinco shall use reasonable best efforts to obtain(i) maintain in effect, execute until the earlier of the funding of the initial funding of the Financing (as defined below) and deliver the funding of the Permanent Financing (as defined below) (in each case, in an amount sufficient to fund the Spinco Cash Distribution), the commitment letter, dated as of the date this Agreement (including: (A) all exhibits, schedules, annexes and amendments to such documents agreement in effect as of the date hereof; and (B) any associated fee letters (together, as amended, restated, replaced, supplemented or instruments otherwise modified from time to time in accordance with the terms of this Agreement and thereof, the “Spinco Commitment Letter”)), from the financing sources party thereto (together with all additional lenders, agents and financing sources added to the Spinco Commitment Letter, the “Spinco Lenders”), pursuant to which, among other things, the Spinco Lenders have committed to provide Spinco with debt financing in the amount set forth therein (the debt financing contemplated by the Spinco Commitment Letter, together with any amendment, modification, supplement, restatement, substitution or waiver thereof in accordance with the terms of this Agreement being referred to as may the “Financing”), (ii) materially comply with the obligations that are set forth in the Spinco Commitment Letter that are applicable to Spinco and satisfy on a timely basis all conditions precedent in the Spinco Commitment Letter that are within its control, and (iii) fully enforce the rights of Spinco under the Spinco Commitment Letter.
(b) In the event any funds in the amounts set forth in the Spinco Commitment Letter or the Financing Agreements, or any portion thereof, become unavailable on the terms and conditions contemplated in the Spinco Commitment Letter or the Financing Agreements, Pluto (in consultation in good faith with Utah) shall cause Spinco to, and Utah shall, and shall cause its Subsidiaries to, use reasonable best efforts to cooperate to arrange to obtain promptly any such portion from the same or alternative sources, in an amount sufficient, when added to the portion of the Financing that is available, to allow Spinco to make the Spinco Cash Distribution (the “Alternative Financing”), and to obtain a new financing commitment that provides for such financing; provided, that (i) the terms of the Alternative Financing must (A) not result in any adverse Tax consequences to Pluto and its Subsidiaries, including as to the Tax-Free Status of the transactions contemplated by the Transaction Documents (as determined by Pluto in good faith) and (B) be customary and reasonable in light of then-prevailing market terms and (ii) none of Spinco, any Spinco Entity or any Utah Entity shall agree, or be required for to agree, (A) to terms and conditions of the Surviving Company’s due assumption Alternative Financing if the consummation thereof on such terms and conditions, taking into account and after giving effect to the Spinco Cash Distribution, the Combination and the other transactions contemplated hereby, would result in Spinco having a Below Investment Grade Rating or (B) to any Alternative Financing if, after giving effect to such Alternative Financing, the Weighted Average Cost of the Available Debt Financing would be in excess of the percentage set forth on Section 8.8 of the Utah Disclosure Schedule.
(c) Spinco shall give Utah prompt written notice upon it obtaining knowledge of (i) any material breach (or threatened material breach) or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by any party to the Spinco Commitment Letter, (ii) any actual or threatened withdrawal, repudiation or termination of the Financing by any of the Spinco Lenders, (iii) any material dispute or disagreement between or among any of the parties to the Spinco Commitment Letter, and (iv) any amendment or modification of, or waiver under, the Spinco Commitment Letter. Spinco shall not, without the prior written consent of Utah, amend, modify, supplement, restate, substitute, replace, terminate, or agree to any waiver under the Spinco Commitment Letter; provided that notwithstanding the foregoing, Spinco may (i) implement or exercise any of the “market flex” provisions exercised by the Spinco Lenders in accordance with the Spinco Commitment Letter as of the date hereof or (ii) amend and succession restate the Spinco Commitment Letter or otherwise execute joinder agreements to the Spinco Commitment Letter solely to add additional Spinco Lenders.
(d) Until the earlier of the Closing and the valid termination of this agreement in accordance with Article X, each of Spinco and Utah agrees to cooperate and use reasonable best efforts to cause the arrangement and consummation of the Financing, including, without limitation, by (i) negotiating definitive agreements with respect thereto, on the terms and conditions contained in the Spinco Commitment Letter or on such other terms as are reasonably acceptable to Pluto and that are not materially less favorable in the aggregate to Spinco or Utah than those in the Spinco Commitment Letter as in effect on the date hereof; provided, that (A) Pluto’s consent, in its sole discretion, shall be required in respect of any such other terms to the extent such terms would reasonably be expected to result in any adverse Tax consequences to Pluto and its Subsidiaries as to the Tax-Free Status of the transactions contemplated by the Transaction Documents (as determined by Pluto in good faith) and (B) Pluto’s consent, not to be unreasonably withheld, conditioned or delayed, shall be required in respect of any such other terms to the extent such terms would reasonably be expected to result in any other adverse Tax consequences to Pluto and its Subsidiaries (the “Financing Agreements”), (ii) satisfying on a timely basis all conditions precedent in the Spinco Commitment Letter and the Financing Agreements that are within the control of Utah or any of its Subsidiaries, and (iii) arranging as promptly as reasonably practicable the Financing prior to the Closing on the terms and conditions set forth in the Spinco Commitment Letter or on such other terms as are reasonably acceptable to Pluto and that are not materially less favorable in the aggregate to Spinco or Utah than those in the Spinco Commitment Letter as in effect on the date hereof; provided, that (A) Pluto’s consent, in its sole discretion, shall be required in respect of any such other terms to the extent such terms would reasonably be expected to result in any adverse Tax consequences to Pluto and its Subsidiaries as to the Tax-Free Status of the transactions contemplated by the Transaction Documents (as determined by Pluto in good faith) and (B) Pluto’s consent, not to be unreasonably withheld, conditioned or delayed, shall be required in respect of any such other terms to the extent such terms would reasonably be expected to result in any other adverse Tax consequences to Pluto and its Subsidiaries. Pluto hereby consents to the use of Spinco’s and its Subsidiaries’ logos in connection with the Financing and solely in a manner that is not intended or reasonably likely to harm or disparage the reputation or goodwill of the relevant party, or any of their respective intellectual property rights. Spinco and Utah shall, upon request by Pluto, each keep Pluto informed in reasonable detail of the status of its efforts to arrange the Financing and as promptly as practicable provide copies of then-current drafts of the Financing Agreements and any definitive agreements relating to the Permanent Financing.
(e) Notwithstanding anything herein to the contrary, if the Financing is available on terms contemplated by the Spinco Commitment Letter or otherwise on terms that are reasonably satisfactory to Pluto and not materially less favorable in the aggregate to Spinco or Utah than those in the Spinco Commitment Letter as in effect on the date hereof; provided, that (A) Pluto’s consent, in its sole discretion, shall be required in respect of any such other terms to the extent such terms would reasonably be expected to result in any adverse tax consequences to Pluto and its Subsidiaries as to the tax-free status of the transactions contemplated by the Transaction Documents (as determined by Pluto in good faith) and (B) Pluto’s consent, not to be unreasonably withheld, conditioned or delayed, shall be required in respect of any such other terms to the extent such terms would reasonably be expected to result in any other adverse tax consequences to Pluto and its Subsidiaries, and all conditions to the Closing set forth in Article IX have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), Pluto shall cause Spinco to, and Spinco shall, immediately prior to the Company’s obligations date of the Distribution incur the indebtedness provided for under the 2022 Indenture Spinco Commitment Letter and the Facility Financing Agreements and use the proceeds thereof to make a payment to Pluto in an aggregate amount equal to the Spinco Cash Distribution, on and pursuant to the terms of the Separation and Distribution Agreement. Spinco shall not incur the indebtedness contemplated by the Financing prior to the date that is one Business Day prior to the date of the Distribution without Utah’s prior written consent (not to be unreasonably withheld, conditioned or delayed).
(f) Notwithstanding the foregoing, in the event of termination of this Agreement pursuant to Article X, Utah shall, and shall cause its Subsidiaries to, (A) pay Pluto an amount of cash equal to 43% of the Financing Obligations (such payment to be made promptly and in any event within ten (10) Business Days of delivery by Pluto of a written request therefor accompanied by reasonable supporting documentation evidencing such Financing Obligations) and (B) indemnify and hold harmless Pluto, its Subsidiaries and its and their Representatives from and against 43% of any Losses (other than fees and expenses of counsel, accountants, consultants or other advisors) actually suffered or incurred by them in connection with the Financing or the Permanent Financing, and any information utilized in connection therewith (other than information provided by or on behalf of Pluto or any of its Subsidiaries in writing prior to the Closing Date) except to the extent suffered or incurred as a result of the gross negligence, willful misconduct or material breach of this Agreement, the Spinco Commitment Letter or any Financing Agreement by Pluto or any of its Subsidiaries.
(g) Each of Pluto, Spinco and Utah agrees to cooperate and use reasonable best efforts to take, or cause to be taken, and to cause their respective Representatives to take or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable and proper in connection with the arrangement, marketing and consummation of the issuance of any debt securities or the incurrence of any other long-term debt financing by Spinco in lieu of the Financing (such financing, the “Permanent Financing”), on or prior to the Closing Date, including (i) customary closing certificates consulting in good faith on the terms and conditions of any Permanent Financing, (ii) participating in the marketing and syndication efforts related thereto and (iii) participating in the preparation of rating agency presentations and meetings with rating agencies, roadshows, due diligence sessions, drafting sessions and meetings with prospective lenders and investors, in each case, with respect thereto, in each case, provided that the terms of such Permanent Financing are reasonably satisfactory to Pluto and Utah. Notwithstanding the foregoing, Pluto and Utah shall not be required to take any action under this Section 8.8(g) that would unreasonably interfere with their respective businesses or ongoing operations.
(h) Notwithstanding anything to the contrary in this Section 8.8, (i) no action contemplated in this Section 8.8 shall be required if any such action shall: (A) require Pluto or any of its Subsidiaries (other similar documents as may than Spinco and its Subsidiaries) to be reasonably requested by the trustee an issuer of the 2022 Notes Financing or as may be required under the Facility Agreement Permanent Financing, (B) require Pluto or any of its Subsidiaries, or Utah or any of its Subsidiaries, or any of their respective Representatives, to provide (or to have provided on its behalf) any certificates, legal opinions or negative assurance letters (other than, in the case of Spinco and its Subsidiaries, certificates, opinions or letters delivered at the closing of the Financing); (C) cause any director, officer or employee of Pluto or any of its Subsidiaries, or Utah or any of its Subsidiaries, to incur any personal liability; (D) require Pluto or any of its Subsidiaries, or Utah or any of its Subsidiaries, to execute and deliver any pledge or security documents or certificates, documents or instruments relating to the provision of collateral in connection with the consummation Financing or Permanent Financing other than those related to Spinco and its Subsidiaries that shall not become effective until after the Distribution; (E) without limiting clauses (B) and (D) above, require Pluto or any of its Subsidiaries, or Utah or any of its Subsidiaries, to execute and deliver any documentation related to the Transactions, including the Merger Financing or Permanent Financing other than (i) documentation executed and delivered by Spinco and its Subsidiaries and (ii) customary legal opinions as are required comfort letters executed and delivered by Utah’s accountants (and customary representation letters related thereto executed and delivered by Utah and its Subsidiaries); (F)
(1) jeopardize (in Pluto’s reasonable determination) any attorney-client privilege of Pluto or any of its Subsidiaries (in which case Pluto and such Subsidiaries shall use reasonable best efforts to take such action in a manner that would not jeopardize such attorney-client privilege) or (2) jeopardize (in Utah’s reasonable determination) any attorney-client privilege of Utah or any of its Subsidiaries (in which case Utah and such Subsidiaries shall use reasonable best efforts to take such action in a manner that would not jeopardize such attorney-client privilege); or (G) result in a material violation or breach of, or a default under, the 2022 Indenture Organizational Documents of Pluto or its Subsidiaries, or the Facility Agreement Organizational Documents of Utah or its Subsidiaries, or any applicable Law.
(i) All non-public or otherwise confidential information regarding the Spinco Business obtained by Utah or its Representatives pursuant to this Section 8.8 or otherwise shall be kept confidential in accordance with the terms of the Confidentiality Agreement. Notwithstanding any other provision set forth herein or in any other agreement between Pluto and Utah (or their respective Affiliates), Pluto agrees that Utah may share information with respect to Spinco and the Spinco Business with the Spinco Lenders, and that Utah and such Spinco Lenders may share such information with potential financing sources in connection with any marketing efforts for the consummation Financing; provided, however, that the recipients of such information and any other information contemplated to be provided by Utah or any of its Subsidiaries pursuant to this Section 8.8, agree to customary confidentiality arrangements, including “click through” confidentiality agreements and confidentially provisions contained in customary bank books and offering memoranda.
(j) All non-public or otherwise confidential information regarding the businesses of Utah and its Subsidiaries obtained by Pluto, Spinco or their respective Representatives pursuant to this Section 8.8 or otherwise shall be kept confidential in accordance with the terms of the TransactionsConfidentiality Agreement. Notwithstanding any other provision set forth herein or in any other agreement between Pluto or Spinco, including on the Merger.one hand, and Utah, on the other hand (or their respective Affiliates), Utah agrees that Pluto and Spinco may share information with respect to the businesses of Utah and its Subsidiaries with the Spinco Lenders, and that Pluto, Spinco and such Spinco Lenders may share such information with potential financing sources in connection with any marketing efforts for the Financing; provided, however, that the recipients of such information and any other information contemplated to
Appears in 2 contracts
Sources: Business Combination Agreement (Pfizer Inc), Business Combination Agreement (Mylan N.V.)
Financing. (a) Subject Parent and MergerSub shall use their reasonable best efforts to arrange and obtain the Debt Financing on the terms and conditions of this Agreementdescribed in the Debt Commitment Letters as promptly as practicable after the date hereof, each of Parent and Merger Sub shall use its including (but subject in all respects to Section 11.13) their reasonable best efforts to (i) maintain in effect the Debt Commitment Letters, (ii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained in the Debt Commitment Letters (including the flex provisions) or on other terms no less favorable to Parent and MergerSub as to conditionality, (iii) satisfy on a timely basis all conditions applicable to Parent and MergerSub in the Debt Commitment Letters that are within their control (including by consummating the Equity Financing pursuant to the terms of the Equity Commitment Letter), (iv) consummate the Equity Financing at or prior to the Effective Time.
Closing and (bv) enforce their rights under the Equity Commitment Letter to the extent set forth in Section 11.13 (but not the Debt Commitment Letters as more fully described in Section 11.13); it being understood that Parent and MergerSub may seek to obtain financing in a private placement of securities pursuant to Rule 144A promulgated under the Securities Act in lieu of a portion of the Debt Financing (and references to the Debt Financing in this Section 8.03 shall be deemed to include such private placement); provided, however, that (1) Parent and MergerSub shall not release or waive the Debt Commitment Letters or the obligations of the arrangers and lenders thereunder and (2) Parent and MergerSub shall proceed with, and consummate, the financing contemplated in the Debt Financing Letters in the event that such alternative private placement financing is not available. Parent shall keep the Company reasonably informed with respect to all material activity concerning the status of the Debt Financing contemplated by the Debt Commitment Letters and shall give the Company notice of any material adverse change with respect to such Financing as promptly as practicable. Without limiting the generality of the foregoing, Parent and MergerSub shall give the Company prompt notice (ix) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter breach or termination of any New Sponsor Equity Commitment Letter material default by any party thereto to any of the Debt Commitment Letters, or any definitive agreements related to the Debt Financing, in each case of which Parent or MergerSub becomes aware, (iiy) upon of the receipt of any written notice or other written communication, in each case received from any party to a New Sponsor Equity Commitment Letter Debt Financing source with respect to any threatened (3) material breach of Parent’s or MergerSub’s obligations under the Debt Commitment Letters or definitive agreements related to the Debt Financing, or default, termination or repudiation by any party to any of the Debt Commitment Letters or definitive agreements related to the Debt Financing or (4) material provision dispute between or among any parties to any of such New Sponsor Equity the Debt Commitment Letter Letters or threatened termination definitive agreements related to the Debt Financing or any provisions of any such New Sponsor Equity of the Debt Commitment Letter.
(c) Each party hereto shall provideLetters, and shall cause in each of its Subsidiaries and each of their respective Representatives to providecase, all cooperation as may be reasonably required with respect to the Equity obligation to fund the Debt Financing or any debt financing or indebtedness the amount of the Company in connection with the consummation Debt Financing to be funded at Closing and (z) of the Transactionsreceipt of any notice or other communication (written or verbal) on the basis of which Parent expects that a party to the Debt Financing will fail to fund the Debt Financing or is reducing the amount of the Debt Financing; provided that in no event shall Parent or MergerSub be under any obligation to disclose any information pursuant to clauses (1) or (2) that would waive the protection of attorney-client or similar privilege if such party shall have used reasonable best efforts to disclose such information in a way that would not waive such privilege. As soon as reasonably practicable, including (i) but in any event within five Business Days of the date the Company obtaining approval delivers to Parent or MergerSub a written request, Parent and MergerSub shall provide any information reasonably requested by the Company relating to any circumstance referred to in clauses (x), (y) or (z) of the immediately preceding sentence. In the event that any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letters (including the flex provisions), (A) an increase in the size of Parent shall promptly notify the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company MergerSub shall use their reasonable best efforts to obtainarrange and obtain any such portion from alternative sources, execute on terms, taken as whole, that are no more adverse to Parent and deliver the Company (including after giving effect to the market flex provisions), as promptly as practicable following the occurrence of such documents event but in no event later than the last day of the Marketing Period. In furtherance of the provisions of this Section 8.03, one or instruments as more Debt Commitment Letters may be required for amended, restated, supplemented or otherwise modified or superseded at the Surviving Company’s due assumption of, and succession to, option of Parent after the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee date of the 2022 Notes or as may be required under the Facility this Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.but prior to the
Appears in 2 contracts
Sources: Merger Agreement (Rennes Fondation), Merger Agreement (Ebix Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and consummate the Equity financing necessary to consummate the Transactions (the "Debt Financing") on the terms and conditions described in the Debt Commitment Letter, including using reasonable best efforts to (i) satisfy on a timely basis all terms, covenants and conditions set forth in the Debt Commitment Letter; (ii) enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Debt Commitment Letter; (iii) enforce its rights under the Debt Commitment Letter; and (iv) consummate the Debt Financing at or prior to the Effective Time. Parent will furnish correct and complete copies of all such definitive agreements to the Company promptly upon their execution.
(b) Parent shall keep the Company informed with respect to all material activity concerning the status of the Debt Financing contemplated by the Debt Commitment Letter and shall give the Company prompt notice of any material adverse change with respect to such Debt Financing. Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two Business Days, if at any time (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Debt Commitment Letter shall expire or termination of be terminated for any New Sponsor Equity Commitment Letter by any party thereto or reason, (ii) upon the receipt of any written notice from any financing source that is a party to a New Sponsor Equity any Debt Commitment Letter with respect notifies Parent that such source no longer intends to provide financing to Parent on the terms set forth therein, or (iii) for any threatened breach reason Parent no longer believes in good faith that it will be able to obtain all or any portion of any material provision of such New Sponsor Equity the Financing contemplated by the Debt Commitment Letter on the terms described therein. Parent shall not, and shall not permit any of its Affiliates to, without the prior written consent of the Company, take or threatened termination fail to take any action or enter into any transaction, including any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing, that could reasonably be expected to breach or make untrue any representation or warranty contained in the Commitment Letters or otherwise impair, delay or prevent consummation of the Financing contemplated by any such New Sponsor Equity of the Debt Commitment Letter. Parent shall not amend or alter, or agree to amend or alter, any Debt Commitment Letter in any manner that would prevent or materially impair or delay the consummation of Transactions without the prior written consent of the Company.
(c) Each party hereto shall provide, If any portion of the Debt Financing becomes unavailable on the terms and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to conditions contemplated in the Equity Financing Debt Commitment Letter or any debt financing Debt Commitment Letter shall be terminated or indebtedness of the Company modified in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board a manner materially adverse to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor for any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Timereason, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources in an amount sufficient to consummate the Transactions ("Alternate Financing") and to obtain, execute and deliver such documents or instruments as may be required for and, if obtained, will provide the Surviving Company’s due assumption Company with a copy of, a new financing commitment that provides for at least the same amount of financing as such Debt Commitment Letter as originally issued and succession toon terms and conditions (including termination rights and funding conditions) no less favorable in the aggregate to Parent or Merger Sub than those included in such Debt Commitment Letter (the "New Commitment Letter"). To the extent applicable, Parent shall use its reasonable best efforts to take, or cause to be taken, all things necessary, proper or advisable to arrange promptly and consummate the Company’s obligations under Alternate Financing on the 2022 Indenture terms and the Facility Agreementconditions described in any New Commitment Letter, including using reasonable best efforts to (i) customary closing certificates satisfy on a timely basis all terms, covenants and other similar documents as may be reasonably requested by conditions set forth in the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and New Commitment Letter; (ii) customary legal opinions as are required enter into definitive agreements with respect thereto on the terms and conditions contemplated by the 2022 Indenture New Commitment Letter; (iii) enforce its rights under the New Commitment Letter; and (iv) consummate the Alternate Financing at or prior to the Facility Agreement in connection with the consummation of the Transactions, including the MergerClosing.
Appears in 2 contracts
Sources: Merger Agreement (Lyondell Chemical Co), Agreement and Plan of Merger (AI Chemical Investments LLC)
Financing. (a) Subject The Purchaser shall use reasonable best efforts to obtain the Debt Financing on or prior to the Closing Date on the terms and conditions described in the Debt Commitment Letter (as the same may be amended, modified or replaced in accordance with this Section 8.08), including its reasonable best efforts to (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the financing documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis (taking into account the expected timing of the Marketing Period), or obtain a waiver of, the conditions to the Debt Commitment Letter that are within the Purchaser’s control (but excluding any condition where the failure to be so satisfied is a direct result of the Company’s failure to furnish information as required under Section 7.08 or the Company’s or the Seller’s breach of any of their respective other obligations under this Agreement); (iv) subject to the terms of the Debt Commitment Letter and upon the satisfaction of the conditions set forth in the Debt Commitment Letter, enforce its rights to consummate the Debt Financing or to cause the Debt Financing Sources and the other persons committing to fund the Debt Financing to fund the Financing at the Closing under the Debt Commitment Letter (provided, however, that in no event shall reasonable best efforts include any obligation on the part of Purchaser or any of its Affiliates to commence or thereafter to commence any litigation, arbitration, action or other adjudicatory or legal proceeding against any Debt Financing Source); and (v) upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, including using its reasonable best efforts to cause the Debt Financing Sources and the other persons committing to fund the Debt Financing to fund the Debt Financing at the Closing. The Purchaser shall not permit or agree to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount), unless the representation and warranty set forth in Section 6.08 hereof (as though made at the time of the effectuation of such termination, amendment, modification, waiver or replacement) shall remain true and correct; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Debt Financing (or satisfaction of the conditions to the Debt Commitment Letter that are in the Purchaser’s control) on the Closing Date or (y) adversely impact the ability of Purchaser to enforce its rights against other parties to the Debt Commitment Letter or solely to the extent definitive loan agreements are entered into prior to the Closing Date, the definitive agreements with respect thereto; provided that (i) the Purchaser shall not be deemed to have violated this Section 8.08 if the Purchaser shall have (A) provided prior written notice to the Seller of any termination, amendment, modification, waiver or replacement it proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 8.08 and (B) demonstrated (to the reasonable satisfaction of the Seller) that it has other funds available to it (on conditions not materially less favorable in the aggregate to the Purchaser than the conditions to the Debt Commitment Letter) that are sufficient to pay all other amounts required to be paid by the Purchaser pursuant to this Agreement and in connection with the transactions contemplated by this Agreement, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of (or notice under) this provision or any other provision of this Agreement. Purchaser shall promptly deliver to the Seller copies of any such termination, each amendment, modification, waiver or replacement of Parent the Debt Commitment Letter. In no event shall the Purchaser have any liability for breach of its covenants or agreements in this Section 8.08 if the Closing occurs.
(b) If any portion of the Debt Financing becomes unavailable on the terms and Merger Sub conditions contemplated by the Debt Commitment Letter, the Purchaser shall (i) promptly notify the Seller of such failure and the reasons therefor and (ii) use its reasonable best efforts to arrange and obtain alternative financing from the same or alternative sources in an amount sufficient, when added to the portion of the Debt Financing being replaced that is still available, to consummate the Equity Financing at or prior transactions contemplated hereby with terms and conditions that are not materially less favorable to the Effective Time.
Purchaser, in the aggregate, than the terms and conditions set forth in the Debt Commitment Letter (bgiving effect to any applicable flex provisions), except as agreed by the Purchaser, as promptly as practicable following the occurrence of such event (the “Alternative Debt Financing”). The Purchaser shall as soon as reasonably practicable deliver a true, correct and complete copy of each alternative financing commitment (collectively, a “New Debt Commitment Letter”) Parent to the Company. Any reference in this Agreement to the “Debt Financing” shall give include the Company prompt notice financing contemplated by the Debt Commitment Letter on the date hereof, as permitted to be amended, modified or replaced (iin whole or in part) upon becoming aware of by this Section 8.08, including any breach of any material provision of Alternative Debt Financing, and references to “Debt Commitment Letter” shall include such debt commitment letters as permitted to be amended, modified or replaced (in whole or in part) by this Section 8.08, including any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Debt Commitment Letter.
(c) Each party hereto Prior to the Closing, the Purchaser shall providekeep the Company reasonably informed, upon the request of the Company, of the status of its efforts to arrange the Debt Financing and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of give the Company in connection with the consummation of the Transactions, including prompt notice: (i) the Company obtaining approval of (A) an increase in the size any breach of any material provisions of any of the Company Board to such number as is requested in writing by Parent and (B) the election Debt Commitment Letter or definitive document related to the Company Board Debt Financing by any party to any Debt Commitment Letter or definitive document related to the Debt Financing of the individuals who will serve as directors of the Surviving Companywhich it has Knowledge, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Timeextent such breach could reasonably be expected to delay or prevent the Closing, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies receipt of any written notice or other written communication from any Debt Financing Source with respect to any (A) actual or potential breach, default, termination or repudiation by any party to any Debt Commitment Letter or any definitive document related to the extent requested by Parent. Neither Debt Financing or any provisions of the Company nor Debt Commitment Letter or (B) dispute or disagreement between or among any of its Subsidiaries shall (x) be required parties to pay any commitment or similar fee prior Debt Commitment Letter with respect to the Effective Time obligation to fund the Debt Financing or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence amount of the Effective Time, Parent shall promptly reimburse Debt Financing to be funded at the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)Closing.
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Amag Pharmaceuticals Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub Each party shall use its reasonable best efforts to arrange and obtain debt financing as promptly as reasonably necessary for the proceeds thereof to be available on the Closing Date in the amounts set forth in the term sheets contained in Section 5.21 of the Parent Disclosure Schedule hereto on terms that are substantially consistent with or not substantially less favorable to the parties hereto, in each party’s good faith commercial judgment, than the terms set forth in the term sheets contained in Section 5.21 of the Parent Disclosure Schedule together with any other terms reasonably acceptable to the parties hereto (the “Term Sheet Financing”) or, if the Term Sheet Financing is not available or the parties hereto agree to pursue other debt financing, in such amounts and on such other terms and conditions as are acceptable to all parties (in each party’s sole discretion) (any financing described in this sentence, “Acceptable Financing”). Notwithstanding anything to the contrary contained herein, nothing in this Agreement shall require any party to arrange or obtain debt financing that is not Acceptable Financing.
(b) In furtherance of the foregoing covenant, if Acceptable Financing is available to the parties hereto, each party hereto hereby agrees to use its reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to such Acceptable Financing, and to offer customary fees, discounts and other incentives to potential financing sources, (ii) satisfy on a timely basis all conditions applicable to such Acceptable Financing in such definitive agreements, and (iii) use reasonable best efforts to consummate the Equity Acceptable Financing at or prior to the Effective Time.
(b) Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment LetterClosing.
(c) Each With respect to any Acceptable Financing proposed to be entered into by any party hereto shall providehereto, each party shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to (i) participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and each sessions with rating agencies, (ii) assist in the preparation of (A) any offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with such Acceptable Financing (and to provide any financial and other information customarily included in any such document) and (B) materials for rating agency presentations, (iii) obtain customary accountants’ comfort letters including “negative assurance” comfort and consents of accountants for use of their respective Representatives reports in any materials relating to providesuch Acceptable Financing, all cooperation legal opinions, appraisals, surveys, title insurance and other customary documentation and items relating to such Acceptable Financing, (iv) execute and deliver, as of the Closing, any pledge and security documents, other definitive financing documents, or other certificates or documents, as may be reasonably required with respect necessary to facilitate such Acceptable Financing, and (v) take all corporate actions, subject to the Equity Financing Closing, reasonably necessary or any debt financing or indebtedness of the Company in connection with customary to permit the consummation of such Acceptable Financing and to permit the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board proceeds thereof to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon made available on the Closing (including entry into any agreement) or would be effective prior Date to consummate the Effective Time. If transactions contemplated by this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)Agreement.
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 2 contracts
Sources: Merger Agreement (Mirant Corp), Merger Agreement (Rri Energy Inc)
Financing. (a) Subject As of the date of this Agreement, Parent has delivered to the Company a true and complete copy of (i) an executed equity commitment agreement, dated as of the date hereof (the “Equity Commitment Agreement”), among Parent, Sub and Guarantor, pursuant to which Guarantor has agreed, according to the terms and subject to the conditions therein, to fund an amount sufficient to satisfy the Financing Uses no later than immediately prior to the Closing (the “Equity Financing”), (ii) the Limited Guarantee and (iii) the Debt Financing Commitment Letters (the Equity Commitment Agreement and the Debt Financing Commitment Letters, collectively, the “Financing Letters”) (and corresponding fee letters relating to the Debt Financing Commitment Letters redacted only in respect of specific fee amounts and specific “flex” terms, none of which affect the conditionality, availability or amount of the Debt Financing available on the Closing Date or remedies available with respect thereto) from the Debt Financing Sources, pursuant to which the Debt Financing Sources have agreed to provide, severally and not jointly, subject to the terms and conditions of this Agreementtherein, each of Parent and Merger Sub shall use its reasonable best efforts to consummate the Debt Financing (such Debt Financing, together with the Equity Financing at or prior Financing, collectively referred to as the Effective Time“Financings”). The Company is an express third-party beneficiary with respect to, and is entitled to specifically enforce, the Equity Commitment Agreement.
(b) On the Closing Date, assuming receipt of the proceeds of the Financings in accordance with the terms of the Financing Letters, Parent shall give will have sufficient available funds to pay the Aggregate Merger Consideration and any other cash amounts payable pursuant to, or in connection with the Transaction, including any obligations of the Surviving Corporation or its Subsidiaries that become due or payable by the Surviving Corporation and the Company prompt notice Subsidiaries in connection with, or as a result of, the Transactions, and payment of all fees and expenses related to the foregoing (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon collectively, the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter“Financing Uses”).
(c) Each party hereto shall provideThe Financing Letters and Limited Guarantee have not been terminated or otherwise amended, supplemented or modified in any respect as of the date of this Agreement. The Equity Commitment Agreement and shall cause the Limited Guarantee are legal, valid and binding obligations of each of the parties thereto (other than the Company), enforceable against such parties in accordance with their terms, subject to the Bankruptcy and Equity Exception. The Debt Financing Commitment Letters represent valid, binding and enforceable obligations of Parent and, to the knowledge of Parent, each other party thereto, to provide the Debt Financing, enforceable against such party in accordance with its Subsidiaries terms, subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, there are no side letters or other Contracts or arrangements relating to the Financings other than as expressly contained in the Financing Letters and delivered to the Company prior to the date hereof, in each case, that would affect the availabiltiy of their respective Representatives the Debt Financing or make the Debt Financing materially less likely to provideoccur. As of the date of this Agreement, all cooperation as may no event has occurred which, with or without notice, lapse of time or both, could constitute a default or breach on the part of Parent, Sub or Guarantor under any term of, or a failure of any condition under, the Financing Letters or otherwise result in any portion of the Financings contemplated thereby to be reasonably required unavailable on the Closing Date. There are no conditions precedent or other contingencies to the availability of the Financings, other than the conditions set forth in this Agreement (with respect to the Equity Financing) and those explicitly set forth in the Debt Financing Commitment Letters (the “Financing Conditions”) with respect to the Debt Financing. No event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default on the part of Parent or, to the knowledge of Parent, any other party thereto under the Financing Letters or the Limited Guarantee or would result in the failure of a Financing Condition. Each of Parent and Sub has no reason to believe that it or any debt financing other party to the Financing Letters will be unable to satisfy on a timely basis any term thereof. There are no conditions precedent or indebtedness other contingencies related to the funding of the Company in connection with the consummation full amount of the Transactions, including (i) the Company obtaining approval of (A) an increase Financings other than as expressly set forth in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)Financing Letters.
(d) The Company shall use reasonable best efforts Neither Parent nor Sub has, directly or indirectly, entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that prohibits such provider from providing or seeking to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreementprovide services, including debt or equity financing, to any third person in connection with a transaction relating to the Company or the Company Subsidiaries (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement including in connection with the consummation making of the Transactions, including the Merger and (iiany Competing Proposal) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (West Marine Inc)
Financing. (a) Subject Buyer shall, and shall cause Parent and its subsidiaries to, use all commercially reasonable efforts to obtain the Financing on the terms and conditions described in the Commitment Letter, when applicable, any Alternative Financing Commitment or, when applicable, the Commitment Letter or Alternative Financing Commitment, each as amended, modified or replaced in accordance with the Financing Modification Requirements (collectively, the “Financing Commitment”), including using all commercially reasonable efforts (i) to maintain in effect the Financing Commitment and to negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitment or on other terms no less favorable to Buyer, (ii) to satisfy (or cause Parent and its subsidiaries to satisfy) on a timely basis all conditions in such definitive agreements, (iii) subject to the terms and conditions of this Agreementcontemplated in the Financing Commitment, each of Parent and Merger Sub shall use its reasonable best efforts to consummate the Equity Financing at or prior to the Effective Time.
Closing, (biv) Parent to comply with its obligations under the Financing Commitment and (v) to cause the Persons providing the Financing to fund the Financing contemplated by the Financing Commitment on the Closing Date (including by enforcing its rights under the Financing Commitment). Buyer shall deliver to Seller true and complete copies of all agreements (other than any fee letters and engagement letters) pursuant to which any such alternative source shall have committed to provide Buyer with any portion of the Financing. Buyer shall give the Company Seller prompt notice (i) upon becoming aware of any material breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto to the Financing Commitment or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
the Financing Commitment. Buyer shall refrain (c) Each party hereto shall provide, and shall cause each its subsidiaries to refrain) from taking, directly or indirectly, any action that would reasonably be expected to result in a failure of any of the conditions contained in the Financing Commitment or in any definitive agreement related to the Financing. Buyer shall not agree, without Seller’s prior written consent, to or permit any replacement, amendment, supplement or other modification of, or waive any of its Subsidiaries and each of their respective Representatives to providerights under, all cooperation or a portion of the Financing Commitment if such replacement, amendment, supplement, modification or waiver (1) reduces the aggregate amount of the Financing Commitment, (2) imposes new or additional conditions or otherwise amends, expands or modifies any of the conditions to the Financing in any respect that could make such conditions less likely to be satisfied before the Closing or that would expand the possible circumstances under which such conditions would not be satisfied by the Closing Date, (3) can reasonably be expected to delay the Closing or the date on which the Financing would be obtained or (4) could adversely impact the ability of Buyer and its Affiliates to enforce their rights against other parties to the Financing Commitment or the definitive agreements relating to the Financing (the “Financing Modification Requirements”). In the event that the Buyer becomes aware of any event or circumstance that makes procurement of any portion of the Financing unlikely to occur in the manner or from the sources contemplated in the Commitment Letters, Buyer shall promptly notify Seller and shall use all commercially reasonable efforts to arrange as may promptly as practicable, but in no event later than one day prior to the Closing Date, any such portion from alternative debt financing sources, on terms and conditions consistent with the Financing Modification Requirements (any such alternative financing actually obtained by Buyer, an “Alternative Financing Commitment”). Buyer shall keep Seller informed on a current basis of the status of its efforts to obtain the Financing, provide Seller with copies of all documents related to the Financing. Notwithstanding anything to the contrary herein, if Buyer’s inability to consummate the Financing is attributable to Seller’s failure to comply with its obligations under Sections 5.8(b)(i) and (c)(i), then, for all purposes under this Agreement, Buyer shall not be reasonably required deemed in breach of the covenant in this Section 5.8(a), the representations in Section 4.10 or the covenant in Section 7.2(a)(iii) with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)Cash Purchase Price.
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Midstates Petroleum Company, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to arrange and obtain the Financing on the terms and conditions described in the Financing Documents, including using reasonable best efforts to (i) negotiate and enter into the Debt Financing Agreement with respect to, and on the terms and conditions contained in, the term sheet set out in the Debt Commitment Letter as promptly as reasonably practicable after the date hereof, the terms and conditions of which shall not impose new or additional conditions, or otherwise enhance or expand upon or adversely modify the conditions to the closing of the Debt Financing contained in the Debt Commitment Letter, (ii) maintain in full force and effect the Financing Documents, (iii) satisfy on a timely basis all conditions in the Debt Financing Agreement, (iv) fully enforce its rights under the Debt Financing Agreement and (v) consummate the Equity Financing at or prior to the Effective Time.
Closing. In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in any of the Financing Documents, (bx) Parent shall give promptly so notify the Company, and (y) each of Parent and Merger Sub shall use its reasonable best efforts to arrange and obtain promptly any such portion from alternative debt financing (the “Alternative Financing”) in an amount sufficient, when added to the portion of the Financing that is available and the Company prompt notice Cash Financing, to consummate the transactions contemplated by this Agreement on terms and conditions not less favorable, taken as a whole, to Parent and Merger Sub (ias determined in the reasonable judgment of Parent) upon becoming aware of any breach of any material provision of any New Sponsor Equity than those in the Debt Commitment Letter or termination the Debt Financing Agreement. Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Financing and, if applicable, the Alternative Financing and shall deliver to the Company as promptly as practicable after such execution, true and complete copies of all Contracts or other arrangements (including fee letters), under which any New Sponsor Equity Commitment Letter by such Alternative Financings is provided, except for any party thereto such Contracts or other arrangements that do not impact the conditionality of the Alternative Financing (the “Alternative Financing Agreements”). To the extent applicable, the obligations of each of Parent and Merger Sub in clauses (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(cv) Each party hereto under this Section 6.14(a) shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required apply with respect to the Equity Alternative Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)Alternative Financing Agreements.
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 2 contracts
Sources: Merger Agreement (Ren Jinsheng), Merger Agreement (Simcere Pharmaceutical Group)
Financing. (a) Subject to the terms and conditions Each of this AgreementHoldco, each of Parent and Merger Sub shall use its reasonable best efforts to consummate take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Equity Financing on the terms and conditions described in the Financing Commitments, including by (i) maintaining in effect the Financing Commitments, (ii) satisfying on a timely basis all conditions applicable to Holdco, Parent and Merger Sub in the Financing Commitments that are within their control, including without limitation paying when due all commitment fees and other fees arising under the Financing Commitments as and when they become due and payable thereunder, and (iii) consummating the financing contemplated by the Financing Commitments at or prior to the Effective Time. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter, (x) Holdco, Parent and Merger Sub shall promptly notify the Company and (y) Holdco, Parent and Merger Sub shall use their reasonable best efforts to arrange and obtain alternative financing from alternative sources in an amount sufficient to consummate the Transactions with terms and conditions that are not less favorable in any material respect (as determined by Parent) than the terms and conditions set forth in the Debt Commitment Letter as promptly as practicable following the occurrence of such event (the “Alternative Financing”). If any Parent Party becomes aware of the existence of any fact or event that would reasonably be expected to cause the Debt Financing to become unavailable on the terms and conditions contemplated by the Debt Commitment Letter, Holdco, Parent and Merger Sub shall use their reasonable best efforts to either cure or eliminate such fact or event, or to arrange and obtain the Alternative Financing. The Parent Parties shall promptly provide a true and complete copy of each alternative financing agreement (together with a redacted copy of any related fee letter) to the Company.
(b) None of Holdco, Parent nor Merger Sub shall give amend, alter or waive, or agree to amend, alter or waive, any term of the Financing Commitments without the prior written consent of the Company prompt notice Board if such amendments, alterations or waivers would (i) upon becoming aware reduce the aggregate amount of the Debt Financing, or (ii) impose new or additional conditions that would reasonably be expected to prevent or materially delay the ability of Holdco, Parent or Merger Sub to consummate the Merger; provided, that notwithstanding any other provision of this Agreement, Holdco, Parent and Merger Sub shall be entitled from time to time to (x) amend, restate, supplement, replace, substitute or otherwise modify, or waive any of its rights under, the Financing Commitments and/or replace or substitute other debt or equity financing for all or any portion of the Financing from the same and/or alternative financing sources, subject to clauses (i) and (ii) above, and (y) amend, restate, supplement, replace, substitute or otherwise modify the Debt Commitment Letter for the purposes of adding agents, co-agents, lenders, managers, co-managers, arrangers, bookrunners or other Persons that have not executed the Debt Commitment Letter as of the date hereof so long as such amendment, restatement, supplement, replacement substitution or modification is otherwise in compliance with this Section 6.14(b). The Parent Parties shall promptly notify the Company of (i) the expiration or termination of any Financing Commitment, (ii) any breach of any material provision provisions of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter the Financing Commitments by any party thereto or (iiiii) upon any refusal by the receipt of any written notice from any party parties to a New Sponsor Equity Commitment Letter with respect the Financing Commitments to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letterprovide the full financing contemplated by the Financing Commitments.
(c) Each party hereto shall Holdco, Parent and Merger Sub acknowledge and agree that the obtaining of the Financing (including any Alternative Financing) is not a condition to the Closing, and reaffirms its obligation to consummate the Merger and the other transactions contemplated hereby, irrespective and independent of the availability of the Financing, subject to the applicable conditions set forth in Article VII and the requirements of Section 1.02.
(d) Prior to the Effective Time, the Company agrees to use reasonable best efforts to provide, and shall cause each Subsidiary of its Subsidiaries the Company and each of their respective Representatives officers, employees and representatives to use reasonable best efforts to provide, to Holdco, Parent and Merger Sub (at Parent’s sole cost and expense), all reasonable cooperation as may be reasonably requested by the Parent Parties or their Representatives in connection with the Debt Financing and any Alternative Financing, including, without limitation, (i) participating in a reasonable number of meetings, presentations, due diligence sessions, road shows, sessions with rating agencies and other meetings, including arranging for reasonable direct contact between senior management, representatives and advisors of the Company with representatives of the Parent Parties and their Debt Financing and/or Alternative Financing sources, (ii) assisting in the preparation of offering memoranda, private placement memoranda, bank information memoranda (including a public side version which does not contain non-publicly available information), prospectuses, rating agency presentations and similar documents reasonably requested by the Parent Parties or their Representatives in connection with the Debt Financing and/or Alternative Financing (including using reasonable best efforts to obtain consents of accountants for use of their reports in any materials relating to the Debt Financing and/or Alternative Financing and delivery of one or more customary representation letters), (iii) promptly furnishing the Parent Parties and their Debt Financing and/or Alternative Financing sources with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by the Parent Parties and their Debt Financing and/or Alternative Financing sources, including, without limitation, all financial statements and financial and non-financial information regarding the Company and its Subsidiaries as may be reasonably requested by the Parent Parties and of the type and form customary for the placement, arrangement and/or syndication of loans or distribution of debt contemplated by (or otherwise required as a condition to funding under) the Debt Commitment Letter (the information required to be delivered in this clause (iii), the “Required Information”), (iv) cooperating with advisors, consultants and accountants of the Parent Parties or their Debt Financing sources with respect to the Equity Financing conduct of any examination, appraisal or review of the financial condition or any debt financing of the assets or indebtedness liabilities of the Company or any Subsidiary of the Company, including for the purpose of establishing collateral eligibility and values, (v) using reasonable best efforts to obtain accountants’ comfort letters and legal opinions as may be reasonably requested by the Parent Parties, (vi) executing and delivering any pledge and security documents, commitment letters, underwriting or placement agreements or other definitive financing documents conditioned upon Closing, or other ancillary documentation including certificates, legal opinions or documents as may be reasonably requested by the Parent Parties or their Representatives (including a certificate of the chief financial officer of the Company or any borrower Subsidiary of the Company with respect to solvency matters) or otherwise facilitate the pledging of collateral, the delivery of pay-off letters and other cooperation in connection with the consummation pay-off of the Transactionsexisting Indebtedness and release of all related Liens, including (ivii) the Company obtaining approval of taking all actions reasonably necessary to (A) an increase permit the prospective lenders involved in the size Debt Financing and/or any Alternative Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of the Company Board to such number as is requested in writing by Parent establishing collateral arrangements and (B) establishing bank and other accounts (including escrow accounts), blocked account agreements and lock box arrangements in connection with the election foregoing, provided that such accounts, agreements and arrangements shall not become active or take effect until the Effective Time, (viii) entering into one or more credit or other agreements on terms satisfactory to the Company Board of Parent Parties in connection with the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of Debt Financing and/or any Alternative Financing immediately prior to the Effective Time, provided that such agreements and arrangements shall not become active or take effect until the Effective Time, (ix) furnishing Holdco, Parent, Merger Sub and its Representatives promptly with all documentation and other information required with respect to the Debt Financing and/or any Alternative Financing under applicable “know your customer” and anti-money laundering rules and regulations and (iix) furnishing Holdco, Parent, Merger Sub and its Representatives promptly upon its request with a list of contractual arrangements existing as of a date specified by Holdco, Parent, Merger Sub or its Representative pursuant to which the Company using commercially has an obligation to sell, lease, license, surrender, transfer, lend or otherwise dispose of such assets, in reasonable efforts details and furnishing Holdco, Parent, Merger Sub and its Representatives such supporting documents requested thereby.
(e) The Company will take all corporate actions reasonably necessary to ensure that permit the Parent and the Surviving Company benefit from the existing lending relationships consummation of the Group Companies Debt Financing and/or any Alternative Financing, including without limitations the execution and delivery of any other certificates, instruments or documents, and to permit the proceeds thereof, together with cash at the Company and its Subsidiaries, to be made available to the extent requested Company on the Closing Date to consummate the Merger. The Company shall promptly notify Parent if any information furnished by Parentthe Company or any of its Subsidiaries pursuant to this Section 6.14(c) is or becomes inaccurate, incomplete or misleading in any material respect. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment fee or similar fee or incur any liability with respect to the Debt Financing or any Alternative Financing prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior Closing. The Company hereby consents to the Effective Timeuse of its and its Subsidiaries’ logos in connection with the Debt Financing and/or any Alternative Financing. If this Agreement is terminated in accordance with its terms prior Parent shall, promptly upon request by the Company, reimburse (or cause the applicable borrowers to the occurrence of the Effective Time, Parent shall promptly reimburse reimburse) the Company for any all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by it the Company or any of its Subsidiaries in connection with the Company’s compliance with cooperation of the Company and its Subsidiaries contemplated by this Section 6.07(c)(i6.14(d) through (iii).
(d) The Company and shall use reasonable best efforts to obtain, execute indemnify and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, hold harmless the Company’s obligations under the 2022 Indenture , its Subsidiaries and the Facility Agreement, including (i) customary closing certificates their respective Representatives from and other similar documents as may be reasonably requested against any and all liabilities or losses suffered or incurred by the trustee any of the 2022 Notes or as may be required under the Facility Agreement them in connection with the consummation arrangement of the TransactionsDebt Financing or Alternative Financing and any information used in connection therewith (except with respect to any information provided by or on behalf of the Company or any of its Subsidiaries), including except in the event such liabilities or losses arose out of or result from the willful misconduct of the Company, its Subsidiaries or any of their respective Representatives.
(f) Nothing in this Section 6.14 or any other provision of this Agreement shall require, and in no event shall the “reasonable best efforts” of Holdco, Parent or Merger and Sub be deemed or construed to require, Holdco, Parent or Merger Sub to (i) seek the Equity Financing from a source other than the Sponsors or in any amount in excess of that contemplated by the Equity Commitment Letter, (ii) customary waive any term or condition of this Agreement, or (iii) commence any legal opinions as are required by the 2022 Indenture action or the Facility Agreement in connection with the consummation of the Transactions, including the Mergerproceeding against any financing source.
Appears in 2 contracts
Sources: Merger Agreement (Chuanwei Zhang), Merger Agreement (China Ming Yang Wind Power Group LTD)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to consummate (taking into account the expected timing for Closing) obtain, no later than the Closing Date, the proceeds of the Financing on the terms and conditions described in the Commitment Letters (subject to replacement thereof in accordance with Section 5.17(c)), including (i) maintaining in effect the Commitment Letters in accordance with and subject to the terms and conditions set forth therein (it being understood that the Commitment Letters may be replaced or amended as provided below), (ii) negotiating definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) substantially consistent with the terms and conditions contained in the Debt Commitment Letter (including, as necessary, any “market flex” provisions contained in any related fee letter), (iii) satisfying on a timely basis (or obtaining a waiver of) all conditions in the Debt Commitment Letter and (iv) complying with the covenants applicable to it in the Commitment Letters and in the Definitive Agreements for the Financing. In the event that all conditions contained in the Commitment Letters (other than, with respect to the Debt Financing, the availability of the Cash Equity) have been satisfied, Parent shall use its reasonable best efforts to cause the Debt Financing Sources and Equity Investor to fund the Financing at Closing (including by promptly taking enforcement action in the event of a breach by the Debt Financing Sources or Equity Investor of their obligations under the Commitment Letters or Definitive Agreements); provided, however, in no event shall “reasonable best efforts” of Parent under this Section 5.17 be deemed or construed to require Parent to instigate or pursue litigation against any of the Debt Financing Sources. Parent shall not, without the prior written consent of the Company (which shall not be unreasonably withheld, conditioned or delayed) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Commitment Letters if such amendment, modification, waiver or remedy (i) imposes any new (or expands or adversely modifies any existing) conditions to the Effective Timeconsummation of the Financing in a manner that could reasonably be expected to prevent or delay the Closing or the Financing or (ii) reduces the amount of the Financing to an amount that would be less than the amount that would be required to pay the Financing Amount (unless, in the case of a reduction to the Debt Financing, the Cash Equity is increased by the amount of any such reduction); provided, however, that Parent may (x) amend, modify or supply the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties to the Debt Commitment Letter, (y) amend or modify the Debt Commitment Letter to implement the "market flex" provisions included in the related fee letter, or (z) otherwise amend or replace the Debt Commitment Letter so long as (A) such amendment does not impose terms or conditions that would reasonably be expected to delay or prevent the Closing, (B) the terms of such amendment do not reduce the amount of the Financing to an amount that would be less than the amount that would be required to pay the Financing Amount (unless, in the case of a reduction to the Debt Financing, the Cash Equity is increased by the amount of any such reduction), (C) with respect to replacements, the replacement debt commitments otherwise satisfy the terms and conditions of Alternative Debt Financing set forth below, (D) such amendment does not adversely affects the ability of Parent to enforce its rights against other parties to the Commitment Letters or the Definitive Agreements, (E) such amendment does not waive any remedy available to Parent or its Affiliates thereunder or adversely affect the ability of Parent or its Affiliates to enforce or cause the enforcement of its rights under the Financing, (F) such amendment does not allow for the early termination of the Debt Commitment Letter or (G) such Amendment cannot reasonably be expected to prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. In the event that any portion of the Debt Financing becomes unavailable or any of the Definitive Agreements shall be withdrawn, repudiated, terminated or rescinded, regardless of the reason therefor (other than the right of Parent to terminate this Agreement pursuant to Section 7.4 hereof) Parent will (i) use its reasonable best efforts to obtain from the same and/or alternative debt financing (in an amount, when taken together with the Cash Equity, at least equal to the Financing Amount) (the “Alternative Debt Financing”) and (ii) promptly notify the Company of such unavailability and the reason therefor. For the purposes of this Agreement (other than as expressly provided otherwise), the term “Debt Financing” shall be deemed to include any Alternative Debt Financing arranged in compliance herewith, and the terms “Debt Commitment Letter” and “Definitive Agreement” shall be deemed to include any commitment letter (or similar agreement) or definitive agreement with respect to any such Alternative Debt Financing; provided, that, notwithstanding anything to the contrary herein, in no event shall any Alternative Debt Financing or amendment with respect to the Debt Commitment Letter be deemed to adversely expand the obligations set forth in this Section 5.17 of the Company and its Subsidiaries.
(b) Parent shall give promptly notify the Company prompt notice in writing (i) upon becoming aware of any breach of or default by any party to a material provision of any New Sponsor Equity the Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or Letter, (ii) upon of the receipt by any of Parent or Merger Sub or any of their Affiliates of any written notice from any party to a New Sponsor Equity Commitment Letter Debt Financing Source with respect to any actual or threatened breach of breach, dispute, termination or repudiation by any material provision of such New Sponsor Equity party to any Commitment Letter (but excluding in each case, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing or threatened any Definitive Agreement with respect thereto, (iii) if for any reason Parent or Merger Sub believes in good faith that it will not be able to obtain all or any portion of the Financing necessary to fund the Financing Amount (taking into account the Cash Equity) on the terms, in the manner or from the sources contemplated by the Commitment Letters and (iv) of the termination or expiration in writing (or attempted or purported termination in writing, whether or not valid) of any such New Sponsor Equity the Debt Commitment Letter. Parent shall keep the Company reasonably informed (and provide information reasonably requested by the Company in writing) of the status of its efforts to arrange the Financing and any other financing; provided that Parent shall not be obligated to provide any information that would jeopardize any attorney-client privilege on a reasonably current basis of the status of its efforts to consummate the Financing. Notwithstanding the foregoing, compliance by Parent with this Section 5.17(b) shall not relieve Parent of its obligation to consummate the transactions contemplated by this Agreement, whether or not the Financing is available.
(c) Each party hereto The Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to provide, and shall use reasonable best efforts to cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation reasonably requested by Parent in connection with the arrangement, marketing, preparation and closing of the Debt Financing as well as any necessary consents, amendments, repayments or terminations of existing financing arrangements) (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company or any of its Subsidiaries), including using reasonable best efforts to, upon ▇▇▇▇▇▇’s request:
(i) participate in a reasonable number of virtual meetings, conference calls, presentations, road shows, due diligence sessions and sessions with arrangers, potential lenders and/or rating agencies, in each case at reasonable times and locations mutually agreed, and upon reasonable notice;
(ii) assist Parent with the preparation of customary rating agency presentations, bank information memoranda, offering memoranda, confidential information memoranda, private placement memoranda, prospectuses and similar marketing documents and investor, lender presentations (including a customary authorization letter) and other similar customary documents and materials required in connection with the Debt Financing Sources (the “Marketing Material”) and otherwise assist in the marketing efforts of Parent and its Debt Financing; provided that no such Marketing Material shall be issued by the Company or its Subsidiaries;
(iii) assist Parent in connection with the preparation of (but not executing prior to the Closing), execution and delivery of any loan agreement, guarantees, pledge and security documents, customary closing certificates, perfection certificates, solvency certificate, and any other definitive financing documents as may be reasonably required requested by Parent or the Debt Financing Sources and otherwise reasonably cooperating with respect Parent and the Debt Financing Sources in facilitating the pledging of collateral and the granting of security interests relating to the Equity Financing or any debt financing or indebtedness collateral if required by the Debt Commitment Letter, it being understood that such documents will not take effect until the Closing;
(iv) use commercially reasonable efforts to assist Parent in the preparation of pro forma financial information and pro forma financial statements (it being understood that the Parent shall be responsible for the preparation of (including costs and expenses of) such pro forma financial information and statements);
(v) at least four (4) Business Days prior to the Closing Date, provide all documentation and other information about the Company and each of its Subsidiaries as is reasonably requested in writing by Parent at least nine (9) Business Days prior to the Closing Date that relates to applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and customary beneficial ownership certifications;
(vi) cooperate in connection with the consummation repayment or defeasance of the TransactionsCredit Facilities and release, discharge and termination of the related Liens, including (i) the Company obtaining approval of (A) an increase delivering such payoff letters in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Timeaccordance with Section 6.2, and (ii) the Company using commercially reasonable efforts to ensure that the Parent delivering any UCC authorizations or other release and the Surviving Company benefit from the existing lending relationships termination of the Group Companies related Liens, and termination, defeasance or similar notices; and
(vii) promptly supplement the written information provided pursuant to this Section 5.17 to the extent requested by Parentthat any such information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein, taken as a whole, not materially misleading in light of the circumstances under which such statements were made. Neither The foregoing notwithstanding, nothing in this Section 5.17 or otherwise shall require (i) the Company nor or any persons who are directors of the Company or any of its Subsidiaries shall prior to the Closing Date to pass resolutions or consents to approve or authorize any aspect of the Debt Financing; (xii) be required the Company or any of its Subsidiaries or any of their respective Representatives to enter into any agreement (other than customary authorization letters) or undertake any obligation which becomes effective prior to the Closing and that is not contingent on the occurrence of the Closing; (iii) the Company or any of its Subsidiaries to pay any commitment or other similar fee or incur any other cost or expense in connection with the Debt Financing for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of the Parent; (iv) the Company, any Subsidiary or any Representative thereof to deliver any opinion; (v) the Effective Time Company or (y) be required any of its Subsidiaries to commit to taking take any action that could reasonably be expected to (A) conflict with, or result in any violation or breach of, or default under, the organizational documents thereof, any applicable Law, or any material contract to which it is a party (to the extent not contingent upon entered into in contemplation of this Section 5.17(c)); (B) result in the waiver of any attorney-client privilege of, or conflict with any confidentiality obligations binding on, the Company or any of its Subsidiaries (so long as the Company has reasonably cooperated with Parent and used commercially reasonable efforts to permit disclosure to the extent permitted by such confidentiality obligations) or (C) cause any condition to the Closing set forth in ARTICLE VI not to be satisfied; (including entry into vi) any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence Representative of the Effective TimeCompany to deliver any certificate or take any other action in any personal capacity; (vii) the preparation, in connection with the Debt Financing, of quarterly or annual financial statements for the Company with a different fiscal quarter or fiscal year end than the Company’s current fiscal quarter and fiscal year end dates; or (viii) the Company or any of its Subsidiaries to provide or cause to be provided any Excluded Information.
(d) Parent shall shall, promptly upon written request by the Company, reimburse the Company for any all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees) incurred by it the Company or any of its Subsidiaries or their respective Representatives in connection with the Company’s compliance cooperation contemplated by this Section 5.17(d) (other than the preparation of its normal quarterly and annual financial statements). Parent shall indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs, charges or expenses (including reasonable and documented out-of-pocket attorneys’ fees), suffered or incurred by them in connection with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested the Debt Financing (including the arrangement or obtaining thereof), (ii) any action taken by the trustee of the 2022 Notes them pursuant to this Section 5.17(d), or as may be required under the Facility Agreement (iii) any information utilized in connection with the consummation Debt Financing, in each case, other than as a result of fraud, bad faith, gross negligence or willful misconduct by or on behalf of such Person.
(e) Notwithstanding anything to the Transactionscontrary, the Company shall be deemed to have complied with Section 5.17(c) for all purposes of this Agreement (including ARTICLE III) unless (i) the Merger Company has materially breached its obligations under Section 5.17(c) and (ii) customary legal opinions the Debt Financing has not been obtained and such failure arises primarily as are required by a result of the 2022 Indenture or Company’s willful breach of its obligations under Section 5.17(c). For the Facility Agreement avoidance of doubt, the parties acknowledge and agree that the provisions contained in Section 5.17(c) represent the sole obligation of the Company and its Subsidiaries and their respective Representatives with respect to cooperation in connection with the consummation arrangement of the TransactionsFinancing, and no other provision of this Agreement (including the Mergerexhibits and schedules hereto) shall be deemed to expand or modify such obligations.
(f) All non-public or otherwise confidential information regarding the Company or any of its Subsidiaries obtained by Parent or its Representatives pursuant to this Section 5.17 shall be kept confidential in accordance with the Confidential Disclosure Agreement; it being understood that Parent and its representations may disclose such information to its Debt Financing Sources, other potential sources of capital, rating agencies and prospective lenders during syndication of the Debt Financing or any Alternative Debt Financing, subject to and in accordance with customary confidentiality practices for syndicated processes of the Debt Financing Sources or customary market standards for dissemination of such type of information. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided, that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of the Subsidiaries or the reputation or goodwill of the Company or any of the Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Starrett L S Co), Merger Agreement (Starrett L S Co)
Financing. (a) Subject The Buyer Parties shall use their commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary to arrange the Debt Refinancing on the terms and conditions described in the Refinancing Commitment Letter, including using their commercially reasonable efforts to (i) maintain in effect the Refinancing Commitment Letter; (ii) satisfy on a timely basis all conditions applicable to the Buyer Parties to obtaining the Debt Refinancing as set forth in the Refinancing Commitment Letter that are within its control; (iii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions (including, if necessary, the flex provisions) contemplated by the Refinancing Commitment Letter or on other terms no less favorable to Buyer; (iv) comply with the Buyer’s obligations under the Refinancing Commitment Letter and the definitive agreements with respect thereto; (v) subject to the terms and conditions of this Agreementcontemplated in the Refinancing Commitment Letter, each of Parent and Merger Sub shall use its reasonable best efforts to consummate the Equity Financing Debt Refinancing at or prior to the Effective Time.
; and (bvi) Parent shall give enforce its rights under the Company prompt notice Refinancing Commitment Letter. If any portion of the Debt Refinancing becomes unavailable on the terms and conditions (iincluding the flex provisions) upon becoming aware of any breach of any material provision of any New Sponsor Equity contemplated in the Refinancing Commitment Letter or termination the definitive agreements with respect thereto, the Buyer Parties shall promptly notify the MLP Parties and use their commercially reasonable efforts to amend, modify, supplement, alter, restate, substitute or replace the Debt Refinancing with other alternative financing, on terms no less favorable to Buyer, as promptly as possible; provided, however, that the Buyer Parties shall not permit any amendment, modification, supplement, alteration, restatement, substitution or replacement of the Refinancing Commitment Letter or the Debt Refinancing on terms that are less favorable to Buyer, without the prior consent of the MLP Parties, such consent not to be unreasonably withheld, delayed or conditioned. In such event, the term “Refinancing Commitment Letter” as used herein shall be deemed to include the amended, modified, supplemented, altered, restated, substituted or replacement, commitment letter. The Buyer Parties shall promptly (and in any event within two Business Days) notify the MLP Parties: (A) of any New Sponsor Equity Commitment Letter default or breach by any party thereto to the Refinancing Commitment Letter or definitive documents related to the Debt Refinancing of which the Buyer Parties are aware; (iiB) upon of the receipt of any written notice from any party to a New Sponsor Equity the Refinancing Commitment Letter with respect to (1) any threatened breach of default, breach, termination or repudiation by any material provision of such New Sponsor Equity party to the Refinancing Commitment Letter or threatened termination definitive documents related to the Debt Refinancing or (2) any material dispute or disagreement between or among parties to the Refinancing Commitment Letter or definitive documents related to the Debt Refinancing of which the Buyer Parties become aware; and (C) if for any such New Sponsor Equity reason the Buyer Parties determine in good faith that they will not be able to obtain all or any portion of the Debt Refinancing on the terms, in the manner or from the sources contemplated by the Refinancing Commitment Letter.
(c) Each party hereto Letters. The Buyer Parties shall providekeep the MLP Parties informed on a reasonably current basis of the status of their efforts to arrange the Debt Refinancing and provide copies of all draft and executed documents related to the Debt Refinancing to the MLP Parties. In the event that the Buyer Parties are unable to obtain the Debt Refinancing or alternative financing on terms no less favorable to Buyer, the Buyer Parties will obtain an amendment to the Buyer Credit Agreement so that the Buyer will be permitted thereunder to, and will have sufficient funds available thereunder to, refinance the MLP Credit Agreements at the Closing; provided, however, that the Buyer Parties shall cause each of its Subsidiaries be permitted to pay any and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect fees to the Equity Financing or any debt financing or indebtedness of the Company lenders and administrative agent in connection with any such amendment without the consummation prior consent of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)MLP Parties.
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 2 contracts
Sources: Merger Agreement (Inergy L P), Merger Agreement (Inergy Midstream, L.P.)
Financing. (a) Subject The Purchaser shall use reasonable best efforts to take, or cause to be taken, all appropriate action, do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Laws, and to execute and deliver, or cause to be executed and delivered, such instruments and documents as may be reasonably required, to arrange and consummate the Financing as soon as practicable after the date of this Agreement and, in any event, on or prior to the Closing on the terms and subject only to the conditions contained in the Equity Financing Commitment and the Loan Financing Documentation, including (i) maintaining (x) the Equity Financing Commitment and negotiating and executing definitive agreements with respect thereto on the terms and conditions of this Agreementcontained therein, each of Parent which terms and Merger Sub conditions shall use its not expand upon the conditions to Closing or other contingencies to the funding, and (y) the Loan Financing Documentation (the “Financing Agreements”); (ii) using reasonable best efforts to consummate satisfy on a timely basis all conditions in the Equity Financing at or prior Commitment and the Loan Financing Documentation that are within the Purchaser’s control to be satisfied and using reasonable best efforts to cause the Effective Timefinancial institutions providing the Loan Financing to fund the Loan Financing; (iii) fully enforcing its rights under the Equity Financing Commitment and (iv) drawing upon and consummating the Loan Financing, if available to be drawn upon and consummated. The Purchaser shall provide Sellers with a copy of the Financing Agreements as soon as practicable, but no later than two (2) business days, after their execution.
(b) Parent The Purchaser shall give the Company prompt notice (i) upon becoming aware of any breach of not agree to or permit any material provision amendment, supplement or other modification of, or waive any of its rights under, the Equity Financing Commitment or the Financing Agreements without the Sellers’ prior written consent, not to be unreasonably withheld, except that the Purchaser may amend, supplement or otherwise modify any New Sponsor Equity Commitment Letter of the foregoing if such amendment, supplement or termination other modification would not impair or delay the funding of any New Sponsor Equity Commitment Letter by any party thereto the Loan Financing or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment LetterClosing.
(c) If any portion of the Loan Financing becomes unavailable on the terms and conditions contained in the Loan Financing Documentation, the Purchaser shall promptly notify the Sellers, and the Purchaser shall use its commercially reasonable efforts to obtain, as promptly as practicable following the occurrence of such event, commitments on terms that will enable the Purchaser to consummate the transactions contemplated by this Agreement and that are not less favorable in the aggregate (as determined by the Purchaser in its reasonable judgment) to the Purchaser than those contained in the Loan Financing Documentation. The Purchaser shall deliver to the Sellers complete and correct copies of all amendments, supplements, other modifications or agreements pursuant to which any amended, supplemented, modified or replacement commitments shall provide the Purchaser with any portion of the Financing; provided that the Purchaser may redact from any such copies the fee amounts and pricing information payable to their Financing sources.
(d) Each party hereto shall provideof the Sellers shall, and shall cause each of the Company and its Subsidiaries to, and each shall use its commercially reasonable efforts to cause its and the Company and its Subsidiaries independent accountants, legal counsel and other advisors to, provide such reasonable cooperation in connection with the arrangement of their respective Representatives to provide, all cooperation the Loan Financing as may be reasonably required with respect to requested by the Equity Purchaser or their Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactionssources, including (i) reasonably facilitating the Company obtaining approval of (A) an increase in the size pledging of the Company Board to such number as is requested Shares in writing by Parent and (B) connection with the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective TimeLoan Financing, and (ii) the Company using commercially reasonable efforts to ensure obtain accountants’ “comfort letters”, accountants’ consent letters, legal opinions, and other customary documentation as reasonably requested by the Purchaser; provided that the Parent and the Surviving Company benefit from the existing lending relationships none of the Group Companies to the extent requested by Parent. Neither the Company Sellers nor any of its Subsidiaries their Affiliates shall (x) be required to pay any commitment or similar other fee prior to the Effective Time or (y) be required to commit to taking incur any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it other liability in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)Financing.
(de) The Company Purchaser shall keep the Sellers reasonably informed on a timely basis of any material developments relating to the Financing.
(f) The Sellers understand that a significant portion of the Purchase Price will be financed with proceeds of the Loan Financing, which will be provided by third party sources. The Sellers accordingly acknowledge that the obligations of the Purchaser under this Section 6.03 do not require the Purchaser or any of its Affiliates to provide the Loan Financing or the Backstop Debt Financing themselves if such third party sources fail to provide the Loan Financing or the Backstop Debt Financing or to guarantee that such third party sources will provide the Loan Financing or the Backstop Debt Financing but only requires that the Purchaser use its reasonable best efforts to obtain, execute arrange and deliver such documents or instruments as may be required for consummate the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the MergerLoan Financing.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Tops Markets Ii Corp), Purchase and Sale Agreement (Tops Markets Ii Corp)
Financing. (a) Subject The Purchaser and Finance Merger Sub: (i) shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain the Debt Financing and the Equity Financing on the terms and conditions (including flex provisions) described in the Debt Commitment Letter and the Fee Letter and the Equity Commitment Letters, respectively, to the extent necessary to consummate the Contemplated Transactions, including seeking to enforce the terms of the Equity Commitment Letters; provided, however, that in no event shall the Purchaser and Finance Merger Sub be required to initiate any Action to cause any Committed Lender to fund the Debt Financing; (ii) shall not permit any amendment or modification to be made to, or consent to any waiver of any provision or remedy under, the Debt Commitment Letter, the Fee Letter or any Definitive Debt Agreement, in each case, if such amendment, modification, consent or waiver (x) reduces the aggregate amount of the Debt Financing below an amount, together with any available cash of the Purchaser and Finance Merger Sub, required to pay the Required Payment Amount, (y) imposes any new or additional conditions to the Debt Financing or otherwise adversely expands, amends or modifies any other provision of the Debt Commitment Letter, the Fee Letter or such Definitive Debt Agreement (including, without limitation, the Debt Financing Conditions), in a manner that would reasonably be expected to prevent or materially delay the Closing, or (z) adversely impacts the ability of the Purchaser and Finance Merger Sub to enforce its rights prior to Closing against the Committed Lenders or any other party to the Debt Commitment Letter, the Fee Letter or any Definitive Debt Agreement to timely consummate the Contemplated Transactions; provided, that the Purchaser and Finance Merger Sub may amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who have not executed the Debt Commitment Letter as of the date hereof; provided that the aggregate principal amount of the Debt Financing is not reduced as a result of such amendment unless, contemporaneously with such amendment, the Equity Commitment Letters are amended to increase the commitments thereunder in respect of the Equity Financing by an amount equal to such reduction in the committed Debt Financing; (iii) shall not permit any amendment or modification to be made to, or consent to any waiver of any provision or remedy under, the Equity Commitment Letters; (iv) shall not permit, or consent to, any assignment of rights or obligations under the Debt Commitment Letter other than as explicitly permitted pursuant to the proviso to clause (ii) above; and (v) shall not permit, or consent to, any assignment of rights or obligations under the Equity Commitment Letters; provided, that any Sponsor may allocate all or a portion of its obligations to fund the Commitment Amount (as defined in the applicable Equity Commitment Letter) to an Affiliate (as defined in the applicable Equity Commitment Letter) or to an entity sponsored, co-sponsored, managed by or advised by an Affiliate (as defined in the applicable Equity Commitment Letter) of such Sponsor, but without such allocation relieving or otherwise diminishing the obligation of such Sponsor to fund the Commitment Amount in full; and provided, further, that any such allocation shall not relieve such Sponsor of its obligations under the applicable Equity Commitment Letter to fund such Sponsor’s entire Commitment Amount (as defined in the applicable Equity Commitment Letter) except to the extent the entire Commitment Amount (prior to giving effect to such allocation and without giving effect to any amount funded under any other Equity Commitment Letter) is funded to the Purchaser in accordance with the terms of such Equity Commitment Letter. The Purchaser shall promptly deliver to the Company copies of any such amendment, modification, consent or waiver. For purposes of this Agreement, references to “Financing” or “Debt Financing,” as applicable, shall include the financing contemplated by the Commitment Letters as permitted to be amended, modified or waived by this Section 7.07(a), and references to “Debt Commitment Letter” shall include such documents to the extent amended, modified or waived as permitted by this Section 7.07(a).
(b) Notwithstanding anything to the contrary in this Agreement, nothing contained in this Section 7.07 shall require, and in no event shall the reasonable best efforts of the Purchaser be deemed or construed to require, the Purchaser or any Affiliate thereof to (i) seek the Equity Financing from any source other than those counterparty to, or in any amount in excess of that contemplated by, the Equity Commitment Letter, or (ii) pay any fees materially in excess of those contemplated by the Debt Commitment Letter or the related fee letter in respect thereof (after giving effect to any “flex” terms with respect thereto).
(c) Without limiting the generality of Section 7.07(a), the Purchaser shall: (i) maintain in effect each of Parent the Commitment Letters and each Definitive Debt Agreement in accordance with the terms and subject to the conditions thereof until the Closing Date and the consummation of the transactions contemplated hereby to occur on the Closing Date; (ii) negotiate and enter into definitive agreements with respect to the Debt Financing (collectively, the “Definitive Debt Agreements”) on the terms and conditions (including the flex provisions) contained in the Debt Commitment Letter and the Fee Letter or on other terms not materially less favorable, taken as a whole, with respect to the Purchaser and Finance Merger Sub as to conditionality than the terms provided in the Debt Commitment Letter; and (iii) satisfy on a timely basis all of the Debt Financing Conditions and any other conditions within Purchaser’s control to the funding of the Financing in the Commitment Letters and the Definitive Debt Agreements on or prior to the Closing Date or, if deemed advisable by the Purchaser, seek the waiver of conditions applicable to the Purchaser and Finance Merger Sub in the Debt Commitment Letter (other than any condition where the failure to be so satisfied is a direct result of Trilogy’s failure to furnish information required to be delivered by such Trilogy Party under Section 7.07(d)). The Purchaser and Finance Merger Sub shall give the Sellers and the Trilogy Parties prompt notice of (A) any breach, default, termination or repudiation by any party to any of the Commitment Letters of which the Purchaser or Finance Merger Sub becomes aware and (B) the receipt by the Purchaser or Finance Merger Sub of any written notice or other written communication from any Debt Financing Source with respect to any breach, default, termination or repudiation by any party to any Commitment Letters of any provisions of the Commitment Letters.
(d) If any portion of the Debt Financing necessary to consummate the Contemplated Transactions becomes unavailable, the Purchaser and Finance Merger Sub shall (i) promptly notify the Representative thereof, and (ii) use its reasonable best efforts to consummate the Equity Financing at or prior arrange to obtain in replacement thereof, as soon as reasonably practicable, any such portion from alternative sources on terms and conditions not materially less favorable to the Effective TimePurchaser and Finance Merger Sub as those contained in the Debt Commitment Letter and, unless otherwise consented to by the Sellers, on a basis that is not subject to any condition precedent materially less favorable to the Purchaser or Finance Merger Sub than the Debt Financing Conditions (“Alternative Financing”). Once obtained, the Purchaser and Finance Merger Sub shall provide the Representative with all agreements pursuant to which any such alternative source shall have committed to provide the Purchaser or Finance Merger Sub with any portion of the Debt Financing and promptly provide the Representative with such information it may reasonably request regarding any alternative financing arrangements or plans. Upon the entry by the Purchaser or Finance Merger Sub into any commitment letter for an Alternative Financing required pursuant to this clause (c), the term “Debt Commitment Letter” shall include the commitment letter in respect of such Alternative Financing and the term “Fee Letter” shall include any fee letter entered into in respect of such Alternative Financing and the appropriate changes shall be deemed to be made to the terms “Debt Financing Sources,” “Committed Lenders” and “Debt Financing.”
(be) Parent shall give Prior to the Company prompt notice (i) upon becoming aware Closing, each of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto Trilogy Parties shall provide, and the Company shall cause each of its respective Subsidiaries and each of Affiliates to provide, and shall respectively use their reasonable best efforts to cause their respective Representatives representatives, including legal and accounting, to provide, all cooperation as may be reasonably required with respect to requested by the Equity Financing or any debt financing or indebtedness of the Company Purchaser that is customary in connection with the consummation arrangement of syndicated loans similar to the Debt Financing or other acquisition loan financings (provided that such requested cooperation is made on reasonable notice and does not unreasonably interfere with the ongoing operations of the TransactionsBusiness, the Company or its Subsidiaries and Affiliates), including cooperation that consists of:
(i) furnishing the Purchaser with such pertinent information (other than financial information, which is covered by Section 7.07(e)(ii)) regarding the Company obtaining approval or its Subsidiaries (including information to be used in the preparation of one or more information packages regarding the business, operations, financial projections and prospects of the Company and its Subsidiaries) that is customarily provided by a borrower in connection with the arrangement of syndicated loans similar to the Debt Financing or other acquisition loan financings, in each case, as reasonably requested by the Purchaser, for the purposes of assisting the Purchaser in its preparation of customary information documents or rating agency or lender presentations relating to such arrangement of loans (other than financial information, which is covered by Section 7.07(e)(ii));
(ii) (A) an increase in furnishing the size Purchaser with the unaudited financial statements of the Company Board and its Subsidiaries, on a consolidated basis, for any fiscal quarter ended after the date of the most recent audited financial statements and more than 45 days prior to such number as is requested in writing by Parent Closing and (B) informing the election to Purchaser if the Sellers, the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor or any of its Subsidiaries shall have knowledge of any fact that most likely requires the restatement of such financial statements, (B) assisting the Purchaser with the Purchaser’s preparation of the specific pro forma financial statements of the Company and its Subsidiaries that are required to be delivered under clause (16) under “Conditions Precedent to Initial Funding” in Exhibit A of the Debt Commitment Letter (as in effect on the date hereof), and (C) to the extent reasonably required by the Debt Financing Sources to be included in any marketing documents related to the Debt Financing, assisting the Purchaser with the Purchaser’s preparation of financial information regarding the Company and its Subsidiaries that are reasonably and readily derivable from the financial statements and financial records of the Company and its Subsidiaries required to be furnished under clause (A) above; provided, however, that nothing in this Section 7.07(e)(ii) shall be deemed to impose on the Company or its Subsidiaries an obligation to re-issue, restate or otherwise furnish financial statements that are not otherwise specifically required under this Agreement;
(iii) assisting in preparation for and participating and causing senior management of the Company and its Subsidiaries to participate in a reasonable number of meetings, drafting sessions and due diligence sessions (including accounting diligence sessions) (including one or more lender meetings and calls with the parties acting as lead arrangers, bookrunners or agents for, and prospective lenders, for the Debt Financing;
(iv) assisting with the preparation by the Purchaser of customary materials for lender information memoranda and similar documents, including the execution and delivery of customary representation letters in connection with bank information memoranda and reviewing and commenting on the Purchaser’s draft of a business description and “Management’s Discussion and Analysis” of the Company’s financial statements to be included in marketing materials contemplated by the Debt Financing; provided, that (x) be this clause (iv) shall not require the Company to provide any information (financial or otherwise) not otherwise required to pay any commitment be delivered by the Company under clause (i) or similar fee prior to the Effective Time or (ii) above, and (y) be required any lender information memoranda, “bank books”, marketing materials, authorization letters and any other documents required, or otherwise delivered to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) any, Committed Lender or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Timeprospective Debt Financing Source, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance Debt Financing shall contain (A) disclosure reflecting the Purchaser and its Subsidiaries post-Closing as the obligors, and (B) disclosures and disclaimers exculpating the Representative, the Sellers, the Trilogy Parties and their respective Affiliates with Section 6.07(c)(i) through (iii).respect to any liability related to the contents or use thereof by the recipients thereof;
(dv) The Company shall use reasonable best efforts to obtainassisting the Purchaser in the Purchaser’s preparation, execute negotiation and deliver such execution of one or more credit agreements, pledge agreements, security agreements, guarantees and other definitive financing documents or instruments as may be required for the Surviving Company’s due assumption ofother certificates, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may Purchaser and that are required to be required obtained under the Facility Agreement Debt Commitment Letter at Closing (including cooperation in connection with the consummation pay-off of existing Indebtedness to the extent contemplated by this Agreement and the release of liens securing such existing Indebtedness); provided, that no obligation of the Transactions, including Company or any of its Subsidiaries under any such agreements or documents shall be effective until the Merger and Closing;
(iivi) providing customary legal opinions authorization letters to the Debt Financing Sources as are required reasonably requested by the 2022 Indenture or Purchaser in writing, authorizing the Facility Agreement distribution of information to prospective lenders, subject to customary confidentiality undertakings;
(vii) to the extent reasonably requested by the Debt Financing Sources for the purposes of obtaining customary waivers, consents, estoppels and approvals in connection with the consummation Debt Financing from other parties to material licenses, leases, encumbrances and Contracts relating to the Company or its Subsidiaries, using their respective reasonable best efforts to arrange discussions among the Purchaser, the Debt Financing Sources and their respective representatives with such other parties to such material licenses, leases, encumbrances and Contracts as of the TransactionsClosing;
(viii) taking all reasonable actions necessary to (A) permit the Debt Financing Sources to evaluate the Company’s current assets and cash for the purposes of establishing collateral arrangements by the Purchaser as of the Closing and to assist with other customary collateral audits and due diligence examinations and (B) establish bank and other accounts and, including effective as of the Merger.Closing, blocked account agreements and lock box arrangements and establish other collateral arrangements to the extent necessary in connection with the Debt Financing; and
(ix) providing to the Purchaser for further distribution to the Debt Financing Sources all documentation and other information reasonably required under applicable “know your customer” and anti-money laundering rules and regulations in connection with the Debt Financing. Notwithstanding anything to the contrary in this Section 7.07(e): (A) no Seller, Trilogy Party or any of their respective Subsidiaries or Affiliates or any of their respective representatives shall be required to pay any commitment or other fee or incur any other liability or expense in connection with the Debt Financing (in the case of the Trilogy Parties, prior to the Closing); (B) no Seller, Trilogy Party or any of their respective Subsidiaries or Affiliates shall be required to take any action or do anything that wou
Appears in 2 contracts
Sources: Equity Purchase Agreement (NorthStar Healthcare Income, Inc.), Equity Purchase Agreement (Griffin-American Healthcare REIT III, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Each Parent and Merger Sub Party shall use its reasonable best efforts to obtain, or cause to be obtained, the proceeds of the Financing on the terms and conditions described in the Commitment Letters (including, as necessary, the “flex” provisions contained in the Fee Letter), including using its reasonable best efforts with respect to (i) maintaining in effect the Commitment Letters, (ii) negotiating definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) consistent with the terms and conditions contained therein (including, as necessary, the “flex” provisions contained in the Fee Letter) or, if available, on other terms that are acceptable to Parent and would not adversely affect (including with respect to timing, taking into account the expected timing of the Marketing Period) the ability of the Parent Parties to consummate the Equity transactions contemplated herein, and (iii) taking into account the expected timing of the Marketing Period, satisfying on a timely basis all conditions applicable to Parent and its Subsidiaries to obtaining the Financing at or prior that are within the Parent Parties’ control. In the event that all conditions contained in the Debt Commitment Letter and the Securities Purchase Agreement (other than, with respect to the Effective TimeDebt Financing, the availability of the Equity Financing, the Subordinated Securities Financing, the MSDC Financing or the Rollover Investment and, with respect to the Subordinated Securities Financing, the Debt Financing, the Equity Financing, the MSDC Financing or the Rollover Investment) have been satisfied (or upon funding will be satisfied), each Parent Party shall use its reasonable best efforts to timely cause the Lenders and the Subordinated Securities Purchaser to fund the Debt Financing and the Subordinated Securities Financing, as applicable (including by seeking through litigation to enforce its rights under the Debt Financing Commitment Letter and Definitive Agreements and the Securities Purchase Agreement, as applicable).
(b) The Parent Parties shall give not, without the Company prompt notice prior written consent of the Company, (i) upon becoming aware of terminate any breach Commitment Letter, unless such Commitment Letter is replaced in a manner consistent with the following clause (ii), or (ii) permit any amendment or modification to, or any waiver of any material provision of or remedy under, or replace, the Commitment Letters if such amendment, modification, waiver, or replacement (w) would (1) add any New Sponsor Equity Commitment Letter new condition to the Financing Commitments (or termination of modify any New Sponsor Equity Commitment Letter by any party thereto existing condition in a manner adverse to Parent) or otherwise that would be reasonably expected to adversely affect (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter including with respect to any threatened breach timing, taking into account the expected timing of the Marketing Period) the ability of the Parent Parties to consummate the transactions contemplated by this Agreement or the likelihood of the Parent Parties doing so, or (2) taking into account the expected timing of the Marketing Period, would be reasonably expected to make the timely funding of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness satisfaction of the Company in connection with the consummation conditions to obtaining any of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board Financing less likely to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.occur,
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Dell Inc)
Financing. (a) Subject Each of Parent, Merger Sub 1 and Merger Sub 2 shall take, or shall cause to be taken, all actions and to do, or cause to be done, all things necessary to arrange the Debt Financing on the terms and conditions described in the Debt Commitment Letters, including (i) to negotiate and enter into the definitive agreements with respect thereto on the terms and conditions contained in the Debt Commitment Letters (including, as necessary, the “flex” provisions contained in any related fee letter) by the Closing Date, and (ii) to satisfy (or if determined advisable by Parent, obtain the waiver of) on a timely basis all conditions to obtaining the Debt Financing within Parent’s control and to comply with all of this Agreementits obligations pursuant to the Debt Commitment Letters and the definitive agreements related thereto. In the event that all conditions to funding the commitments contained in the Debt Commitment Letters have been satisfied, each of Parent Parent, Merger Sub 1 and Merger Sub 2 shall use its reasonable best efforts to cause the Financing Sources to fund the Debt Financing required to consummate the Equity transactions contemplated by this Agreement and to pay related fees and expenses on the Closing Date (including by taking enforcement action to cause the Financing at or prior Sources to provide the Effective Time.
(b) Debt Financing). Each of Parent, Merger Sub 1 and Merger Sub 2 shall use its reasonable best efforts to enforce all of its rights under the Debt Commitment Letters. Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision breach by any party to the Debt Commitment Letters or the definitive agreements related thereto of which Parent has become aware or any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with Debt Commitment Letters or such definitive agreements. In the consummation event that any portion of the TransactionsDebt Financing becomes unavailable, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent Parent, Merger Sub 1 and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries Merger Sub 2 shall (x1) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use their reasonable best efforts to obtain, execute as promptly as practicable following the occurrence of such event, alternative debt financing for any such portion from alternative debt sources (“Alternative Financing”) in an amount that will still enable Parent, Merger Sub 1 and Merger Sub 2 to consummate the transactions contemplated by this Agreement, and (2) promptly notify the Company of such unavailability and the reason therefor. If obtained, Parent shall deliver to the Company true and complete copies of all agreements (including redacted copies of engagement and fee letters, removing only fee amounts, market “flex” provisions and certain other terms (none of which concern or would adversely affect the amounts, availability, timing or conditionality of the Debt Financing)) pursuant to which any such documents alternative source shall have committed to provide Parent, the Initial Surviving Corporation or instruments as may be required for the Surviving Company’s due assumption ofCompany with Alternative Financing. Parent, Merger Sub 1 and succession toMerger Sub 2 shall not, without the Company’s prior written consent, permit any amendment or modification to, or any waiver of any provision or remedy under, any Debt Commitment Letter or any definitive agreements related thereto unless the terms of such Debt Commitment Letter or definitive agreements related thereto, in each case as so amended, modified or waived, are substantially similar to those in such Debt Commitment Letter or definitive agreement related thereto, prior to giving effect to such amendment, modification or waiver (other than economic terms, which shall be as good as or better for Parent, Merger Sub 1 and Merger Sub 2 than those in the Debt Commitment Letter or definitive agreement relating thereto prior to giving effect to such amendment, modification or waiver); provided that in the case of amendments or modifications of any Debt Commitment Letter or a definitive agreement relating thereto, the foregoing shall only apply if such amendment or modification (x) could reasonably be expected to (I) adversely affect the ability or likelihood of Parent, Merger Sub 1 or Merger Sub 2 timely consummating the transactions contemplated by this Agreement or (II) make the timely funding of the Debt Financing or the satisfaction of the conditions to obtaining the Debt Financing less likely to occur, (y) reduces the amount of the Debt Financing or (z) adversely affects the ability of Parent, Merger Sub 1 or Merger Sub 2 to enforce their rights against other parties to the Debt Commitment Letters or the definitive agreements relating thereto. Parent shall provide the Company with prompt written notice of the receipt of any notice or other communication from any Financing Source with respect to such Financing Source’s failure or anticipated failure to fund its commitments under any Debt Commitment Letters or definitive agreement in connection therewith. Parent shall keep the Company reasonably informed on a current basis of the status of its efforts to consummate the Debt Financing.
(b) Notwithstanding anything contained in this Agreement to the contrary, Parent expressly acknowledges and agrees that Parent’s, Merger Sub 1’s and Merger Sub 2’s obligations under the 2022 Indenture and the Facility Agreementhereunder are not conditioned in any manner upon Parent, including (i) customary closing certificates and Merger Sub 1 or Merger Sub 2 obtaining any financing. The failure, for any reason, other similar documents than as may be reasonably requested a result of any material breach of this Agreement by the trustee Company, of Parent, Merger Sub 1 and Merger Sub 2 to have sufficient cash available on the 2022 Notes or as may be date that the Closing is required under to occur pursuant to Section 2.01 hereof and/or the Facility failure to pay the aggregate Cash Consideration on the date that the Closing is required to occur pursuant to Section 2.01 hereof shall constitute a Willful Breach of this Agreement in connection with the consummation of the Transactionsby Parent, including the Merger Sub 1 and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the MergerMerger Sub 2.
Appears in 2 contracts
Sources: Merger Agreement (Humana Inc), Merger Agreement (Aetna Inc /Pa/)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to obtain the Financing on a timely basis including (to the extent the proceeds of the term loans thereunder are needed to consummate the Equity Transactions) pursuant to the New Term Loan Facility and if all conditions to funding thereunder have been satisfied (it being understood and agreed that Parent shall use its reasonable best efforts to satisfy (or cause to be satisfied) all such conditions on a timely basis), causing the lenders under the New Term Loan Facility to consummate the Financing at on or prior to the Effective TimeClosing Date on the terms and conditions described in the New Term Loan Facility (it being understood that it is not a condition to Closing under this Agreement for Parent to obtain all or any portion of the Financing).
(b) Parent shall give will keep the Company reasonably informed of the status of its efforts to arrange the Financing and to satisfy the conditions thereof, including (i) giving the Company prompt notice (i) upon becoming aware having Knowledge of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto to the New Term Loan Facility or any termination of the New Term Loan Facility and (ii) upon the receipt Company’s reasonable request, advising and updating the Company, in a reasonable level of any written notice from any party to a New Sponsor Equity Commitment Letter detail, with respect to the status of the Financing and the anticipated closing of the Financing (which shall be at or prior to the Closing). Except as set forth in this Section 6.04, Parent shall not, without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), voluntarily reduce the committed principal amount of the New Term Loan Facility or amend, modify, supplement or waive any threatened breach of the conditions or contingencies to funding contained in the New Term Loan Facility or any other provision of, or remedies under, the New Term Loan Facility, in each case to the extent such amendment, modification, supplement or waiver would reasonably be expected to have the effect of directly or indirectly (A) impairing the enforceability of the New Term Loan Facility or reducing the aggregate amount of debt financing under the New Term Loan Facility (except (x) as required thereby or (y) concurrently with the entry into alternative debt financing arrangements described in clause (x) of the proviso at the end of this clause (b), in equal amounts to, and having conditions to funding that are no less favorable to Parent than the New Term Loan Facility), (B) adversely affecting in any material respect the ability of Parent to timely consummate the Transactions, (C) amending, modifying, supplementing or waiving the conditions or contingencies to the Financing in a manner materially adverse to the Company or (D) materially delaying or impeding the Closing; provided that notwithstanding any other provision of this Agreement, Parent shall be entitled from time to time to (x) substitute other debt financing (in equal amounts to, and having conditions to funding that are no less favorable to Parent than the New Term Loan Facility) for all or any portion of the Financing from the same or alternative financing sources (including, for the avoidance of doubt, one or more issuances of debt securities; provided, that such debt securities shall not be convertible into, exchangeable for or otherwise linked to, any equity securities), and (y) amend, restate, replace, supplement or otherwise modify the New Sponsor Equity Commitment Letter Term Loan Facility for the purpose of adding agents, co-agents, lenders, arrangers, bookrunners or threatened termination other persons that have not executed the New Term Loan Facility as of any such New Sponsor Equity Commitment Letterthe date of this Agreement, in each case, subject to subclauses (A), (B), (C) and (D) above.
(c) Each party hereto shall provideUpon any such amendment, and shall cause each of its Subsidiaries and each of their respective Representatives to providerestatement, all cooperation as may be reasonably required with respect to the Equity Financing replacement, supplement or any debt financing or indebtedness of the Company modification, in connection accordance with the consummation terms of this Section 6.04, the Transactionsterm “New Term Loan Facility” shall mean for all purposes of this Agreement the New Term Loan Facility as so amended, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by restated, replaced, supplemented or modified. Parent and (B) the election shall promptly make available to the Company Board true and complete copies of any such amendment, restatement, replacement, supplement or modification (with only the fee amounts and certain other provisions redacted, which redacted provisions shall not affect the principal amount or availability of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iiiFinancing).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 2 contracts
Sources: Merger Agreement (British American Tobacco p.l.c.), Merger Agreement (Reynolds American Inc)
Financing. (a) Subject Parent shall use reasonable best efforts to take (or cause to be taken) all actions necessary, proper or advisable to arrange and consummate the Debt Financing on a timely basis on the terms and subject to the conditions of described in the Debt Commitment Letter and the Fee Letters (including the “flex” provisions) to the extent the proceeds thereof are needed to consummate the transactions contemplated by this Agreement, each of . Parent and Merger Sub shall use its reasonable best efforts to (i) maintain in effect the Debt Commitment Letter and comply with its obligations and conditions thereunder, (ii) negotiate and enter into definitive agreements on a timely basis with respect to the Debt Financing on terms and conditions (including “flex” provisions) contained in the Debt Commitment Letter or otherwise no less favorable to Parent than those contained in the Debt Commitment Letter (the “Financing Agreements”), (iii) satisfy (or have waived) on a timely basis all conditions and covenants applicable to Parent in the Debt Commitment Letter that are within its control at or prior to the Closing (including the payment of any commitment, engagement or placement fees required as a condition to the Debt Financing), and otherwise comply in all material respects with its obligations under the Debt Commitment Letter (including the Financing Agreements), (iv) enforce all its respective rights under the Debt Commitment Letter and (v) except to the extent Parent otherwise has cash resources at Closing to fund its payment obligations in full hereunder, upon satisfaction of the conditions set forth in the Debt Commitment Letter (or waiver thereof), consummate the Equity Debt Financing at or prior to the Effective TimeClosing. Parent shall not permit any amendment, supplement or modification to be made to, or any waiver by Parent of any provision or remedy under the Debt Commitment Letter or any Financing Agreement if such amendment, supplement, modification or waiver expands on the conditions precedent or contingencies to the funding on the “Closing Date” of the Debt Financing as set forth in the Debt Commitment Letter as in effect on the date of this Agreement, in a manner that would reasonably be expected to prevent, impair or materially delay the consummation of the transactions contemplated by this Agreement; provided that Parent may replace, amend, supplement or modify the Debt Commitment Letter to add agents, co-agents, lenders, arrangers, joint bookrunners, managers or other entities that have not executed the Debt Commitment Letter as of the date hereof in accordance with the provisions therein. Parent shall promptly deliver to the Company true and complete copies of any such replacement, amendment, supplement, modification or waiver. For purposes of this Section 6.09, references to “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as permitted to be amended or modified by this Section 6.09 and references to “Debt Commitment Letter” shall include such documents as permitted to be amended, modified or substituted by this Section 6.09.
(b) In the event any funds in the amounts set forth in the Debt Commitment Letter or the Financing Agreements, or any portion thereof, become unavailable on the terms and conditions contemplated in the Debt Commitment Letter (including the “flex” provisions set forth in the Fee Letters) or the Financing Agreements, Parent shall (a) give prompt notice to the Company and (b) use its reasonable best efforts to arrange and obtain alternative financing from alternative sources on terms and subject to conditions that are not materially less favorable, taken as a whole, to Parent than those set forth in the Debt Commitment Letter (including the “flex” provisions set forth in the Fee Letters) as in effect on the date hereof, in an amount sufficient, when combined with cash on hand and borrowings under any existing credit facilities or other financing arrangements, to consummate the Merger and the other transactions contemplated by this Agreement as promptly as practicable after the occurrence of such event. Notwithstanding anything to the contrary contained in this Agreement, Parent shall have the right from time to time to substitute other committed debt financing or the proceeds of consummated debt or equity transactions, or available cash or cash equivalents, for all or any portion of the Debt Financing from the same and/or any alternative financing source; provided, that, in the case of committed debt financing, any such substitution shall not expand upon in any material respect the conditions precedent or contingencies to the funding on the “Closing Date” of the Debt Financing as set forth in the Debt Commitment Letter (including the “flex” provisions set forth in the Fee Letters) as in effect on the date of this Agreement in a manner that would reasonably be expected to prevent, impede or materially delay the consummation of the transactions contemplated by this Agreement. In such event, the term “Debt Commitment Letter” as used herein shall be deemed to include the new commitment letter (the “New Debt Financing Commitment”), if any, entered into in accordance with this Section 6.09(b) (any financing arranged under this Section 6.09(b) to substitute for all or any portion of the Debt Financing or if any portion of the Debt Financing becomes unavailable shall be referred to as the “Alternate Debt Financing”). Parent will provide the Company with a true, complete and correct copy of any New Debt Financing Commitment obtained by Parent in connection with an Alternate Debt Financing promptly following the execution thereof (other than fees and other information redacted from such agreements that is consistent with the information redacted from the Fee Letters as permitted by Section 3.12(a)). For the avoidance of doubt, if the Debt Financing or the Alternate Debt Financing, as applicable, is available and the conditions to Closing set forth in Section 7.01 and Section 7.03 have been satisfied or waived (other than those conditions that by their nature will be satisfied (or waived) at the Closing, subject to satisfaction or waiver of such conditions at the Closing), Parent shall use its reasonable best efforts to take all actions within its control necessary to incur the Indebtedness provided under the Debt Financing or the Alternate Debt Financing, as applicable, to consummate the Merger, to the extent the proceeds thereof are needed to consummate the Merger. Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 6.09(b) shall require, and in no event shall the reasonable best efforts of Parent be deemed or construed to require, Parent to (i) bring any enforcement action, including commencing or filing any Legal Proceeding, against any Debt Financing Source to enforce its rights under the Debt Commitment Letter or (ii) pay any fees in excess of those contemplated by the Debt Commitment Letter (whether to secure waiver of any conditions contained therein or otherwise); provided, that Parent shall pay all fees required by the Debt Commitment Letter as they become due.
(c) Parent shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing (or replacement thereof) as the Company may reasonably request, and shall provide the Company with true and complete copies of all Financing Agreements entered into prior to the Closing Date and, as the Company may reasonably request from time to time, drafts of such documents posted to a lender syndicate group; provided that the Fee Letters may be redacted in accordance with Section 6.09(a); provided, further, that in no event will Parent be under any obligation to disclose any information that is subject to attorney-client or similar privilege if Parent shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Without limiting the generality of the foregoing, Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision breach or default by any party to any of any New Sponsor Equity the Debt Commitment Letter or termination Financing Agreements of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by which Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)becomes aware.
(d) Parent acknowledges and agrees that the obtaining of the Debt Financing, or any Alternate Debt Financing, is not a condition to Closing and reaffirms its obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Debt Financing or any Alternate Debt Financing.
(e) The Company shall use its reasonable best efforts to provide to Parent, on a reasonably timely basis, all cooperation and assistance as may be reasonably requested by Parent that is customary in connection with the arrangement, syndication and consummation of the Debt Financing and repayment of Existing Indebtedness of the Company and its Subsidiaries, including by using its reasonable best efforts to (i) provide reasonable cooperation with the marketing efforts of Parent and lenders or initial purchasers for any of the Debt Financing, including using reasonable best efforts, upon reasonable advance notice, to cause its Representatives (including members of senior management and advisors of the Company and its Subsidiaries) to be available to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions, and sessions with rating agencies, (ii) assist with the preparation of customary materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda (to the extent relating to the Company and its Subsidiaries), road show presentations and similar documents reasonably necessary or advisable in connection with the Debt Financing, including the preparation and furnishing in a reasonably timely fashion of all financial statements and other customary data to be included in connection therewith (including all audited financial statements and unaudited financial statements (which shall have been reviewed by the independent accountants for the Company as provided in the procedures specified by the Public Company Accounting Oversight Board in AU 722) referred to in clause 4 of Exhibit H to the Debt Commitment Letter), information regarding the Company and its Subsidiaries reasonably required for Parent to prepare pro forma financial statements as contemplated in clause 6 of Exhibit H to the Debt Commitment Letter (it being understood that the Company need only assist in the preparation thereof, but shall not be required to prepare independently any separate pro forma financial statements), financial data, audit reports and other information regarding the Company and its Subsidiaries of the type required by and in compliance with Regulation S-X and Regulation S-K promulgated under the Securities Act of 1933, as amended, and related forms for a registered public offering of debt securities and all information regarding the Company and its Subsidiaries reasonably necessary for the preparation of updated financial projections for Parent after giving effect to the Merger (A) of type and form customarily included in private placements of debt securities under Rule 144A, to consummate the offering(s) of debt securities contemplated by the Debt Commitment Letter (which, for the avoidance of doubt, shall not include financial statements required by Rule 3-10 or Rule 3-16 of Regulation S-X, information regarding executive compensation (including under Rule 402(b) of Regulation S-K) and (B) for the syndication of bridge loan commitments and facilities and secured revolving credit and term loan commitments and facilities contemplated under the Debt Commitment Letter (the financial statements, financial information reasonably required for Parent to prepare pro forma financial statements, and other historical financial information referred to in this clause (ii), the “Required Information”), (iii) assist with the preparation of Financing Agreements, including the use of reasonable best efforts to assist Parent in connection with the preparation of any pledge and security agreements (including schedules and exhibits thereto) required in connection with the Debt Financing and facilitate the granting of a security interest (and perfection thereof) in collateral to secure the Debt Financing, (iv) use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, cause the Company’s obligations under independent auditors to provide, consistent with customary practice, (A) consent to offering memoranda that include or incorporate the 2022 Indenture Company’s consolidated financial information and their reports thereon, in each case, to the Facility Agreementextent such consent is required, customary auditors reports and customary comfort letters (including “negative assurance” comfort) with respect to financial information relating to the Company and its Subsidiaries, (B) reasonable assistance in the preparation of pro forma financial statements by Parent and (C) reasonable assistance and cooperation to Parent, including attending the accounting due diligence sessions of the Company, (iv) customary closing certificates provide and other similar execute documents as may be reasonably requested by Parent and necessary for the trustee consummation of the 2022 Notes transactions contemplated by this Agreement; provided that no obligation of the Company under any such documents shall be effective until the Closing, (vi) reasonably cooperate with the Debt Financing Sources and their respective agents with respect to their reasonably requested due diligence, (vii) furnish Parent and the Debt Financing Sources in a reasonably timely basis with all documentation and other information required by any Governmental Entity with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, (viii) provide customary authorization and management representation letters representing that the information provided by the Company for inclusion in any confidential information memorandum or lender presentation does not include material non-public information about the Company and its Subsidiaries, and designate the information provided by the Company for presentation to lenders as may suitable to be required under made available to lenders who do not wish to receive material non-public information, (ix) arrange for customary payoff letters, lien terminations and instruments of discharge to be delivered at Closing providing for the Facility payoff, discharge and termination on the Closing Date of all Existing Indebtedness of the Company or any of the Company Subsidiaries contemplated by the Debt Commitment Letter to be paid off, discharged and terminated on the Closing Date (subject to receipt from Parent of the funds necessary to effectuate the pay-off contemplated by such payoff letters, lien terminations and instruments of discharge), and, if requested by Parent, arranging for redemption notices for Existing Indebtedness to be given at Closing or prior to Closing and conditional on the occurrence of the Closing, and (x) satisfy the conditions precedent set forth in the Debt Commitment Letter or any Financing Agreement to the extent the satisfaction of such conditions requires the cooperation of or is within the control of the Company or its Subsidiaries. The Company hereby consents to the use of the logos of the Company and its Subsidiaries in connection with the consummation syndication or marketing of the TransactionsDebt Financing, including provided that such logos are not used in a manner that would reasonably be expected to harm, disparage or adversely affect the Merger and Company, its Subsidiaries, their marks or their reputation.
(iif) customary legal opinions as are required Notwithstanding anything to the contrary contained in this Agreement, (i) nothing in this Agreement shall require any cooperation by the 2022 Indenture Company, the Company Subsidiaries or any of their respective Representatives to the Facility Agreement extent that (A) it would require the Company to pay any commitment or other fees, reimburse any expenses or otherwise incur any liabilities that are not reimbursed by Parent as provided in connection Section 6.09(g) below or give any indemnities prior to Closing, (B) it would require the Company to take any action that in the good faith judgment of the Company unreasonably interferes with the consummation ongoing business or operations of the TransactionsCompany and/or any Company Subsidiary, including (C) it would require the Merger.Comp
Appears in 2 contracts
Sources: Merger Agreement (CEB Inc.), Merger Agreement (Gartner Inc)
Financing. (a) No later than the second (2nd) Business Day after satisfaction or waiver of the conditions set forth in Article VII (other than delivery of items to be delivered at the Closing and other than satisfaction of those conditions that by their nature are to be satisfied at the Closing, it being understood that the occurrence of the Closing shall remain subject to the delivery of such items and the satisfaction or waiver of such conditions at the Closing), and at all times thereafter until the earlier of the Closing or the termination of this Agreement pursuant to Article VIII, the Buyer and the Transitory Subsidiary will have sufficient funds to perform all of their respective obligations under this Agreement and to consummate the Merger.
(b) The Buyer has delivered to the Company a true and complete copy of a fully executed commitment letter (the “Debt Commitment Letter”), dated as of the date hereof, from ▇▇▇▇▇ Fargo Bank, National Association and ▇▇▇▇▇ Fargo Securities, LLC (such institutions, the “Arrangers”). Pursuant to the Debt Commitment Letter and subject to the terms and conditions contained therein (including the exhibits thereto), the Arrangers have committed to provide $125,000,000 in aggregate principal amount of debt financing for the purposes set forth therein (the “Financing”) to the Buyer at the Effective Time (the “Debt Commitment”). The obligations to fund the full amount of the Financing under the Debt Commitment Letter are not subject to any condition precedents other than those expressly set forth in the Debt Commitment Letter. As of the date hereof, (i) no event has occurred which would constitute a breach or default (or an event which with notice or lapse of time or both would constitute a default) on the part of the Buyer under the Debt Commitment Letter or, to the knowledge of the Buyer, any other party to the Debt Commitment Letter, and (ii) subject to the Company’s compliance with its obligations under this Agreement, the Buyer does not have any reason to believe that any of the conditions to the Financing will not be satisfied or that the Financing or any other funds necessary to pay the Aggregate Merger Consideration and to make all other necessary payments by the Buyer in connection with the Merger, including the payment of all fees and expenses reasonably expected to be incurred by the Buyer in connection with the transactions contemplated by this Agreement, will not be available to the Buyer on the Closing Date. As of the date hereof, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation, according to its terms, of each of the Buyer and, to the Buyer’s knowledge, the other parties thereto, subject to the Bankruptcy and Equity Exception. The Debt Commitment Letter has not been amended, restated or otherwise modified or waived on the part of the Buyer prior to the date of this Agreement, the respective commitments contained in the Debt Commitment Letter have not, to the knowledge of the Buyer, been withdrawn, modified or rescinded in any respect prior to the date of this Agreement, and the financing and other fees that are due and payable on or before the date of this Agreement under the Debt Commitment Letter have been paid in full. Subject to the terms and conditions of this Agreementthe Debt Commitment Letter, each of Parent and Merger Sub shall use its reasonable best efforts the net funds contemplated to consummate the Equity Financing at or prior be received pursuant to the Effective Time.
(b) Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Debt Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required together with respect to the Equity Financing or any debt financing or indebtedness other financial resources of the Company Buyer, including cash on hand on the Closing Date, will be sufficient to pay the Aggregate Merger Consideration and to make all other necessary payments by the Buyer in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the TransactionsMerger, including the Merger payment of all fees and (ii) customary legal opinions as are required expenses reasonably expected to be incurred by the 2022 Indenture or the Facility Agreement Buyer, in connection with the consummation of the Transactions, including the Mergertransactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Biosphere Medical Inc), Merger Agreement (Merit Medical Systems Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, each Each of Parent and Merger Sub shall use its their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the proceeds of the Financing, including using reasonable best efforts to (i) with respect to the Debt Financing Commitments negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained in the Debt Financing Commitments and (ii) satisfy on a timely basis all conditions within the control of Parent or Merger Sub, and otherwise comply with all terms, applicable to Parent and Merger Sub in such definitive agreements. In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments and such portion is reasonably required to consummate the Equity transactions contemplated by this Agreement, Parent and Merger Sub shall promptly notify the Company and shall use their reasonable best efforts to arrange to obtain any such portion from alternative sources upon terms and conditions no less favorable to Parent and Merger Sub (in the reasonable judgment of Parent) than those contained in the applicable Financing at or prior Commitments as promptly as practicable following the occurrence of such event. Parent shall deliver to the Effective Time.
(b) Company true and complete copies of all agreements pursuant to which any such alternative source shall have committed to provide Parent and Merger Sub with any portion of the Financing. Parent shall give the Company prompt notice (i) upon becoming aware of any material breach (of which Parent becomes aware) by any party to the Financing Commitments or any termination of the Financing Commitments. Each of Parent and Merger Sub shall refrain from taking, directly or indirectly, any action that would reasonably be expected to result in a failure of any of the conditions contained in the Financing Commitments or in any definitive agreement related to the Financing. Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Financing. Parent and Merger Sub may agree to or permit any amendment, supplement or other modification to be made to, or any waiver of any material provision or remedy under, the Financing Commitments or the definitive agreements relating to the Financing and may obtain financing in substitution of all or a portion of the Financing, so long as they consult with the Company and promptly provide the Company with such information it may reasonably request regarding any New Sponsor Equity Commitment Letter alternative financing arrangements or termination plans. For the avoidance of doubt, if the Financing (or any New Sponsor Equity Commitment Letter alternative) has not been obtained by any party thereto the Outside Termination Date, Parent and Merger Sub shall continue to be obligated to consummate the Merger on the terms contemplated by this Agreement and subject only to the satisfaction or waiver of the conditions set forth in Sections 6.1 and 6.2 of this Agreement and to Parent’s rights under Section 7.1, regardless of whether Parent and Merger Sub have complied with all of their obligations under this Agreement (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letterincluding their obligations under this Section 5.11).
(cb) Each party hereto The Company shall provideand shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its Subsidiaries and each of their respective Representatives to, provide to provide, Parent and Merger Sub all reasonable cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company requested by Parent in connection with the consummation of Financing (or any potential alternative financing) and to assist Parent in causing the Transactionsconditions to the Financing Commitments to be satisfied, including (i) furnishing Parent and Merger Sub and their Financing sources (as promptly as practicable) the Company obtaining approval of (A) an increase in the size unaudited consolidated balance sheet of the Company Board and its Subsidiaries and the related statements of income, change in equity and cash flows as of the end of the most recent quarterly period prior to the execution of this Agreement and any quarterly period ending after the execution of this Agreement, all Company information, financial statements and financial data, and reports and other information regarding the Company and its Subsidiaries, of the type required in registration statements on Form S-3 by Regulation S-X and Regulation S-K under the Securities Act and of a type and form customarily included in registered public offerings of equity under the Securities Act or otherwise necessary to receive from the Company’s independent accountants customary “comfort” (including negative assurance comfort) with respect to the financial information to be included in such registration statement, audited financial statements as of December 31, 2010 and 2011, and for each of the fiscal years in the three-year period ended December 31, 2011 and the other financial data and financial information of the Company and its Subsidiaries that are required under Paragraph (v) of Annex II to the Debt Financing Commitment, and customary pro forma financial statements and information (information required to be delivered pursuant to this clause (i) being referred to as, the “Required Financial Information”), (ii) participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as is lead arrangers, underwriters or agents for, and prospective lenders and purchasers of, the Financing (or any potential alternative financing) and including senior management and Representatives, with appropriate seniority and expertise, of the Company and its Subsidiaries), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Financing (or any potential alternative financing), (iii) assisting with the preparation of customary materials for rating agency presentations, bank information memoranda, offering documents, prospectuses, registration statements and similar documents required in connection with the Financing (or any potential alternative financing) (including requesting any consents of accountants for use of their reports in any materials relating to the Financing and the delivery of one or more customary representation letters), (iv) using reasonable best efforts to obtain customary accountants’ comfort letters and legal opinions as reasonably requested in writing by Parent and facilitating the pledging of collateral in connection with the Financing, including executing and delivering any customary pledge and security documents (Bincluding security documents to be filed with the United States Copyright Office and the United States Patent and Trademark Office to register copyrights, patents and trademarks, as applicable, of the Company and its Subsidiaries to the extent required in connection with the Financing (or any potential alternative financing)), currency or interest hedging arrangements or other definitive financing documents or other certificates, legal opinions, surveys, title insurance and documents as may be reasonably requested by Parent (including a certificate of the chief financial officer of the Company with respect to solvency matters as of the Closing, on a pro forma basis), (v) causing the election taking of corporate actions (subject to the occurrence of the Closing) by the Company and its Subsidiaries reasonably necessary to permit the completion of the Financing (or any potential alternative financing) (provided that nothing herein shall require the Company Board of Directors to approve the individuals who will serve as directors Financing), (vi) facilitating the execution and delivery at the Closing of definitive documents related to the Financing on the terms contemplated by the Debt Financing Commitments, (vii) cooperating with consultants or others engaged to undertake field examinations and appraisals, including furnishing information to such persons in respect of accounts receivable, inventory, equipment, property and other applicable assets and liabilities, (viii) providing to the Financing sources (or sources of any potential alternative financing) all documentation and other information reasonably requested by such Financing sources that such Financing sources reasonably determine is required by regulatory authorities with respect to the Company under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, (ix) assisting Parent in connection with its amendment of any of the Surviving Company’s or its Subsidiaries’ hedging, swap or derivative arrangements on terms satisfactory to Parent, (x) cooperating in each case of clauses procuring, prior to the date that is twenty (A20) consecutive Business Days prior to the Closing Date, corporate and facilities ratings for the Debt Financing and (B)xi) providing authorization letters to the Financing sources authorizing the distribution of information to prospective lenders and containing a representation to the Financing sources that the public side versions of such documents, effective as if any, do not include material non-public information about the Company or its Affiliates or securities; provided, however, that nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of immediately the Company or its Subsidiaries. None of the Company or any of its Subsidiaries shall be required to take any action that would subject it to actual or potential liability or to pay any commitment or other similar fee or provide or agree to provide any indemnity in connection with the Financing or any of the foregoing, prior to the Effective Time, unless such action is contingent upon the Closing. The Company hereby consents to the reasonable use of the Company’s and its Subsidiaries’ trademarks, service marks and logos in connection with the Financing (ii) or any potential alternative financing); provided that such trademarks, service marks and logos are used in a manner that is not intended to or reasonably likely to harm or disparage the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor or any of its Subsidiaries shall (x) be required to pay or the reputation or goodwill of the Company or any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon of its Subsidiaries. If the Closing does not occur, Parent shall indemnify and hold harmless the Company and its Subsidiaries and its Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by it in connection with the arrangement of the Financing (including entry into any agreement) or would be effective prior to actions taken at the Effective Time. If this Agreement is terminated request of Parent in accordance with its terms prior this Section 5.11(b)) and any information utilized in connection therewith (other than historical information relating to the occurrence Company or its Subsidiaries or other information furnished by or on behalf of the Effective TimeCompany or its Subsidiaries), except in the event such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties arose out of or result from the gross negligence, fraud or willful misconduct of the Company, any of its Subsidiaries or any of their respective Representatives. Parent shall from time to time, promptly upon request by the Company, reimburse the Company for any all documented and reasonable and documented out-of-pocket costs incurred by it the Company or its Subsidiaries in connection with the Company’s compliance with this Section 6.07(c)(i) through (iii5.11(b).
(dc) The In the event that the Debt Financing Commitment (or any related definitive agreements) or the Equity Financing Commitment are amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing in accordance with Section 5.11(a), or if Parent substitutes other debt or equity financing for all or a portion of the Financing, each of Parent, Merger Sub and the Company shall use reasonable best efforts comply with its covenants in Sections 5.11(a) and 5.11(b) with respect to obtainthe Debt Financing Commitment (or any related definitive agreements) or the Equity Financing Commitment, execute as applicable, as so amended, replaced, supplemented or otherwise modified and deliver with respect to such documents other debt or instruments as may be required for equity financing to the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture same extent that Parent and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by Company would have been obligated to comply with respect to the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the MergerFinancing.
Appears in 2 contracts
Sources: Merger Agreement (Railamerica Inc /De), Merger Agreement (Genesee & Wyoming Inc)
Financing. (a) Subject Parent has delivered to the Company true, complete and correct copies of (i) an executed equity commitment letter in effect as of the date hereof, including all exhibits, schedules, annexes and amendments thereto (the “Equity Commitment Letter”) from the Guarantors, pursuant to which the Guarantors have committed to provide to Parent, subject to the terms and conditions therein, equity financing in the amount set forth therein for the purposes of financing a portion of the aggregate Merger Consideration, Warrant Consideration and LTI Award Consideration payable at the Closing under this AgreementAgreement (the “Equity Financing”), which Equity Commitment Letter provides that the Company is a third party beneficiary thereof and is entitled to enforce such agreements, in each case to the extent expressly provided for in the enforcement provisions of the Equity Commitment Letter, and (ii) an executed debt financing commitment letter from the Lenders in effect as of the date hereof, including all exhibits, schedules, annexes and amendments thereto, and each fee letter associated therewith (collectively, the “Fee Letter,” and together with such debt financing commitment letter, the “Debt Commitment Letter” and, together with the Equity Commitment Letter, the “Commitment Letters”) (it being understood that the Fee Letter may be customarily redacted; provided, however, that no provisions that, or that could reasonably be expected to, adversely affect the availability of or impose additional conditions on, the availability of the Debt Financing at the Effective Time may be redacted), pursuant to which the Lenders have committed to provide to Parent and/or Merger Sub, subject to the terms and conditions therein, debt financing in the amounts set forth therein (the “Debt Financing” and, together with the Equity Financing, the “Financing”). There are no side letters or other agreements, Contracts, understandings or arrangements to which Parent or Merger Sub is a party that could reasonably be expected to adversely affect the availability of the Financing other than as expressly set forth in the Commitment Letters delivered to the Company pursuant to this Section 4.9(a) (it being understood and agreed that: (i) Parent or a subsidiary thereof may issue senior notes or other debt securities in lieu of all or a portion of the senior bridge facility referred to in the Debt Commitment Letter, (ii) Parent or its affiliates may, in its or their sole and absolute discretion (but shall use its reasonable best efforts not be required to), issue preferred equity at the Closing (in lieu of the senior notes or other debt securities in lieu of a portion of the senior bridge facility) to consummate Permitted Preferred Purchasers, and (iii) Permitted Co-Investors may be added to the Equity Financing at Commitment Letter or prior deliver an equity commitment letter of their own in substantially similar form (except for amount) to the Effective TimeEquity Commitment Letter for a portion of the Equity Financing).
(b) Parent shall give As of the Company prompt notice date of this Agreement: (i) upon becoming aware each Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of each of the Guarantors, Parent and Merger Sub, as applicable, and to the knowledge of Parent, each of the other parties thereto, in each case, except as enforcement may be limited by general principles of equity, whether applied in a court of Law or a court of equity, and by bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting creditors’ rights and remedies generally; (ii) each Commitment Letter has not been amended or modified in any respect and no such amendment or modification is contemplated or pending (other than amendments or modifications to the Debt Commitment Letter solely (A) to add lenders, lead arrangers, bookrunners, syndication agents and similar entities, (B) in connection with the implementation of any breach “market flex” provisions or “securities demand” terms contained in the Debt Commitment Letter, (C) to implement a Replacement Commitment Facility (as defined in the Debt Commitment Letter entered into as of any material provision the date hereof) or issue preferred equity at the Closing (in lieu of any New Sponsor the senior notes or other debt securities in lieu of a portion of the senior bridge facility) to Permitted Preferred Purchasers, and (D) amendments to the Equity Commitment Letter to add Permitted Co-Investors or termination to replace a portion of the Equity Financing with a substantially similar equity commitment letter of any New Sponsor Equity Permitted Co-Investor); and (iii) the commitments contained in the Commitment Letters have not been withdrawn, terminated, reduced or rescinded in any respect (other than as permitted in the immediately preceding clause (ii)(D)). As of the date of this Agreement, Parent has paid (or caused to be paid) in full any and all fees (including commitment fees and other fees) required to be paid under the Debt Commitment Letter by any party thereto that are payable on or (ii) upon prior to the receipt date of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letterthis Agreement.
(c) Each party hereto shall provideAs of the date of this Agreement, there are no conditions precedent or other contractual contingencies (including pursuant to any “flex” provisions in the Fee Letter or otherwise) related to the funding of the full amount (or any portion) of the Financing except as expressly set forth in the Commitment Letters. As of the date of this Agreement, to the knowledge of the Parent, no event has occurred which (with or without notice, lapse of time or both) would reasonably be expected to constitute a failure to satisfy a condition precedent to be satisfied by any Guarantor, Parent or Merger Sub, as applicable, for the Guarantors’ and shall cause each of its Subsidiaries and each of their respective Representatives Lenders’ obligations to provide, all cooperation as may be reasonably required with respect to fund the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactionsand Debt Financing, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)respectively.
(d) The Company shall use reasonable best efforts Assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, completion of the Marketing Period and that the Financing is funded in accordance with the Commitment Letters, the net proceeds contemplated by the Commitment Letters, will, in the aggregate, constitute the funds necessary to obtainsatisfy Parent’s and Merger Sub’s payment obligations under this Agreement at the Effective Time, execute including payment in cash of the aggregate Merger Consideration, Warrant Consideration and deliver such documents or instruments as may be required for LTI Award Consideration payable at the Surviving Company’s due assumption ofEffective Time, and succession to, refinancing of the Company’s obligations indebtedness outstanding under the 2022 Indenture Credit Agreement and the Facility Agreement2021 First Lien Notes (in each case, including (i) customary closing certificates all applicable interest, fees and other similar documents as may premiums), and to pay all related fees and expenses required to be reasonably requested paid by the trustee of the 2022 Notes or as may be required under the Facility Agreement Parent and Merger Sub in connection with the consummation Merger, in each case, at the Effective Time (such amount, the “Required Financing Amount”).
(e) Parent has caused to be delivered to the Company a true, complete and correct copy of the Transactionsduly executed Limited Guarantee. The Limited Guarantee is in full force and effect, including has not been amended, modified, withdrawn or rescinded in any respect, and is the Merger legal, valid, binding and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation enforceable obligation of each of the TransactionsGuarantors. As of the date hereof, including no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would constitute a default or breach on the Mergerpart of any Guarantor under the Limited Guarantee.
Appears in 2 contracts
Sources: Merger Agreement (Moneygram International Inc), Merger Agreement (Moneygram International Inc)
Financing. (a) Subject to If, at any time after the terms and conditions date of this Agreement, each the PropCo Buyer does not have unrestricted cash, cash equivalents or marketable securities together with available borrowings under its existing revolving credit agreements or other lines of Parent credit sufficient to pay (a) the Real Estate Purchase Price and Merger Sub shall use its reasonable best efforts to consummate all other necessary fees, expenses and other amounts payable by the Equity Financing at or prior to the Effective Time.
(b) Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company PropCo Buyer in connection with the consummation of the Transactions, including Transactions and (ib) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be amount required to pay the purchase price and any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable related fees and documented out-of-pocket costs incurred by it expenses in connection with any executed acquisition transactions pending as of the Company’s compliance with Section 6.07(c)(i) through date of this Agreement (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession tocollectively, the Company’s obligations under “PropCo Buyer Required Amount”), Seller may request in writing that PropCo Buyer obtain an executed commitment letter from one or more financing sources pursuant to which they have committed, subject solely to the 2022 Indenture terms and the Facility Agreement, including conditions therein (i) customary closing certificates which terms and other similar documents as may conditions shall be reasonably requested acceptable to the Seller), to provide, or cause to be provided, the PropCo Buyer with debt financing in an amount sufficient, when taken together with unrestricted cash, cash equivalents or marketable securities together with available borrowings under its existing revolving credit agreement, to fund the PropCo Buyer Required Amount (a “Debt Commitment Letter”); provided that the PropCo Buyer shall not be obligated to obtain a Debt Commitment Letter in an amount greater than the Real Estate Purchase Price if the sole use of proceeds for such Debt Commitment Letter is the payment of the Real Estate Purchase Price. Upon receiving such written request, PropCo Buyer shall obtain a Debt Commitment Letter within fifteen (15) Business Days of PropCo Buyer’s receipt of such written request. The PropCo Buyer shall promptly after receipt of the Debt Commitment Letter provide to the Seller true, correct and complete copies of the Debt Commitment Letter. Unless otherwise agreed by the trustee Seller expressly in writing, any Debt Commitment Letter shall remain in place on the committed terms until the Closing Date. For the avoidance of doubt, the obligations of the 2022 Notes or as may be required under the Facility Agreement Seller to cooperate in connection with any Financing as set forth in Section 6.19 shall apply to any Debt Commitment Letter requested by Seller pursuant to this Section 6.24. Notwithstanding the consummation foregoing, in the event that PropCo Buyer receives any written request from Seller pursuant to this Section 6.24 and PropCo Buyer is subsequently able to reasonably demonstrate to Seller that it has sufficient cash, cash equivalents or marketable securities together with available borrowings under its existing revolving credit agreements or other lines of credit in amount equal to or greater than the TransactionsPropCo Buyer Required Amount, including the Merger then any such Seller request shall be automatically be deemed to have been fulfilled and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation all of the Transactions, including the MergerPropCo Buyer’s obligations pursuant to this Section 6.24 shall automatically be deemed to be satisfied.
Appears in 2 contracts
Sources: Transaction Agreement (Penn National Gaming Inc), Transaction Agreement (Vici Properties Inc.)
Financing. (a) Subject Purchaser shall keep Yahoo! reasonably informed with respect to Purchaser’s plan for financing the Initial Repurchase (including nature, amount and anticipated timing) and with respect to the terms and conditions status of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to consummate the Equity Financing at or such financing. No later than five Business Days prior to the Effective TimeInitial Repurchase Closing Date, Purchaser shall deliver to Yahoo! the Financing Certificate and provide Yahoo! with an opportunity to review (in person at the offices of Purchaser’s U.S. counsel), but not to make copies of or retain, the equity financing documents relevant to calculating the Repurchase Price. Purchaser may withdraw and may replace any previously-delivered Financing Certificate; provided, however, that Purchaser shall keep Yahoo! informed of such withdrawal or replacement as soon as reasonably practicable after such occurrence and in any event prior to the Initial Repurchase Closing Date.
(b) Parent shall give In the Company prompt notice event that, (i) upon becoming aware during the Replacement Equity Financing Period, Purchaser sells, or enters into a binding written agreement to sell, Equity Interests for proceeds of any breach of any material provision of any New Sponsor more than US$500,000,000 (such financing during such time period, “Subsequent Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or Financing”) and (ii) upon at any time during the receipt Replacement Equity Use Period Purchaser uses any proceeds of such Subsequent Equity Financing to repurchase Equity Interests or to (x) redeem or repay indebtedness of any written notice from of Purchaser’s Subsidiaries incurred after the date of this Agreement or (y) redeem or repay indebtedness of Purchaser (any party to a New Sponsor Subsequent Equity Commitment Letter with respect to any threatened breach Financing meeting the conditions set forth in both of any material provision clauses (i) and (ii), “Replacement Equity Financing”), Purchaser shall, within five Business Days of such New Sponsor Equity Commitment Letter repurchase, redemption or threatened termination repayment, pay to Yahoo! and/or YHK, as applicable, an amount in cash equal to each Seller’s pro rata share of any such New Sponsor Equity Commitment Letterthe Make Whole Amount.
(c) Each party hereto No Shares or Equity Interests sold by Purchaser as part of the financing of the Initial Repurchase (including in any Replacement Equity Financing) shall providebe sold to JT, and shall cause each of its Subsidiaries and each JM, SB or any of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)Affiliates.
(d) The Company Following the Initial Repurchase Closing, Purchaser shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture cause JM on behalf of himself and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as AGH SAFE 75 Reporting Persons who are required to do so by Law to submit applications to amend the 2022 Indenture or AGH SAFE Circular 75 Registration within 30 days upon the Facility Agreement in connection with the consummation occurrence of the Transactions, including the Mergerany Amendment Event.
Appears in 2 contracts
Sources: Share Repurchase and Preference Share Sale Agreement (Alibaba Group Holding LTD), Share Repurchase and Preference Share Sale Agreement (Yahoo Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Financing on the terms and conditions described in the Financing Commitments, including using reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) negotiate definitive agreements with respect to the Debt Financing on terms and conditions (including, as necessary, the “flex” provisions contained in the redacted fee letter accompanying the Debt Financing Letter) as specified in the Debt Financing Letter (any such agreements, the “Definitive Debt Agreements”), (iii) satisfy on a timely basis (or obtain the waiver of) all conditions that are applicable to Parent or Merger Sub in the Debt Financing Commitment or the Definitive Debt Agreements, as applicable, and comply with its obligations thereunder, and (iv) upon the satisfaction or waiver of such conditions, consummate the Equity Debt Financing at or prior to the Effective Time. In furtherance and not in limitation of the foregoing, in the event that all conditions to the Debt Financing Letter (and if Definitive Debt Agreements have been entered into, to such respective Definitive Debt Agreements) in each case, other than the availability of any of the financing contemplated under the Equity Financing Letter, have been satisfied or waived or upon the funding will be satisfied, and all of the conditions set forth in Section 8.1 (with respect to any funding of Debt Financing to occur at the Closing) have been satisfied or waived (other than those conditions that by their terms are to be satisfied at the closing of the Debt Financing, the Offer Closing or the Closing, as applicable), Parent and Merger Sub shall use their reasonable best efforts to enforce their rights under the Debt Financing Letter and Definitive Debt Agreements, as the case may be, including by suit or other appropriate proceeding.
(b) Parent shall give have the Company prompt notice right from time to time to amend, modify or replace the Financing Commitments; provided, that Parent shall not, without the prior written consent of the Company, agree to, or permit, any amendment, modification or replacement of, or waiver under, the Financing Commitments or the definitive agreements relating to the Financing Commitments if such amendment, modification, replacement or waiver would (iA) upon becoming aware reduce the aggregate amount of any breach of any material provision of any New Sponsor Equity Commitment Letter the Financing (unless the Debt Financing or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing is increased by a corresponding amount), (B) impose new or additional conditions or expand or amend any debt financing or indebtedness of the Company in connection with conditions precedent or contingencies to the funding on the Closing Date of the Financing that would reasonably be expected to (1) prevent, impede or delay the consummation of the TransactionsFinancing, including the Offer Closing or the Closing, (i2) make the Company obtaining approval funding of the Financing less likely to occur, or (A3) an increase adversely impact the ability of the Parent to enforce its rights against the other parties to the Financing Commitments or the definitive documents with respect thereto, or (C) reasonably be expected to (1) prevent, impede or delay the consummation of the Financing, the Offer Closing or the Closing, (2) make the funding of the Financing less likely to occur, or (3) adversely impact the ability of the Parent to enforce its rights against the other parties to the Financing Commitments or the definitive documents with respect thereto, without the prior consent of the Company; provided, further, that notwithstanding the foregoing, Parent may amend the Debt Financing Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Letter as of the date of this Agreement if the addition of such parties individually or in the size aggregate would not reasonably be expected to delay or prevent the consummation of the Company Board to such number as is requested in writing by Debt Financing or the Offer Closing. Parent and (B) the election shall deliver to the Company Board copies of any such amendment, modification, replacement or waiver promptly upon its execution thereof. If, notwithstanding the use of reasonable best efforts by Buyer to satisfy its obligations under this Section 7.15(a), any portion of the individuals who will serve as directors of Debt Financing or Definitive Debt Documents is terminated or expires or otherwise becomes unavailable on the Surviving Company, in each case of clauses (A) terms and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing conditions (including entry into any agreementthe “flex” provisions contained in the redacted fee letter accompanying the Debt Financing Letter) specified in the Debt Financing Letter or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective TimeDefinitive Debt Agreements, Parent shall promptly reimburse notify the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use its reasonable best efforts to obtainarrange and obtain alternative financing from the same and/or alternative sources on terms and conditions not less favorable, execute and deliver such documents or instruments taken as may be required for the Surviving Company’s due assumption ofa whole, and succession toto Parent, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.than
Appears in 2 contracts
Sources: Merger Agreement (Michael Baker Corp), Merger Agreement (Michael Baker Corp)
Financing. (a) Subject Notwithstanding anything to the terms and conditions of contrary contained in this Agreement, each it is expressly understood and agreed by the Parties that (x) the Debt Financing Commitment by its terms contemplates reductions of Parent the commitments thereunder or the termination thereof pursuant to the provisions entitled “Mandatory Commitment Reductions and Merger Sub Prepayments” in Annex B to the Debt Financing Commitment and (y) that Acquiror shall use have the right to terminate or reduce any and all commitments under the Debt Financing Commitment pursuant to the provisions entitled “Optional Commitment Reductions and Prepayments” in Annex B to the Debt Financing Commitment, so long as, in the case of any termination or reduction pursuant to such provisions, (i) Acquiror provides Verizon with reasonable advance written notice of its reasonable best efforts intent to terminate or reduce such commitments, (ii) after giving effect to such termination or reduction Acquiror shall maintain available cash, committed financing (including under any portion of Debt Financing Commitment) and available capacity under its existing revolving credit facilities sufficient in the aggregate to enable Acquiror and the Tower Operator to consummate the Equity Financing at or transactions contemplated hereby, including payment of the Consideration and fees and expenses of Acquiror relating to the transactions contemplated hereby and (iii) prior to such termination or reduction, Acquiror supplies written documentation reasonably satisfactory to the Effective TimeVerizon Parties evidencing such available cash, committed financing and available capacity.
(b) Parent shall give Acquiror and the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon Tower Operator acknowledge and agree that the receipt of the Debt Financing is not a condition to the consummation of the Initial Closing or the other transactions contemplated by this Agreement and the Collateral Agreements, and that, except as otherwise expressly provided herein, the failure to obtain the Debt Financing shall not in any written notice from any party way relieve Acquiror and the Tower Operator of their obligations to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter consummate the Initial Closing or threatened termination of any such New Sponsor Equity Commitment Letterthe other transactions contemplated by this Agreement and the Collateral Agreements.
(c) Each party hereto shall provide, Subject to any termination or reduction in accordance with Section 9.11(a) and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing extent some or any debt financing or indebtedness all of the Company in connection with the consummation proceeds of the Transactions“Bank Financing”, “Equity Offering” or the “Notes Offering” described in Annex B to the Debt Financing Commitment are not available, Acquiror shall use commercially reasonable efforts to borrow under the “Facility” described in such Annex B as required to consummate the transactions contemplated hereby, including payment of the Consideration and fees and expenses of Acquiror relating to the transactions contemplated hereby, on or prior to the Initial Closing Date on the terms and conditions set forth in the Debt Financing Commitment including (i) the Company obtaining approval of (A) an increase maintaining in the size of the Company Board to such number as is requested in writing by Parent effect and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure enforce the Debt Financing Commitment, including, subject to satisfaction of the conditions thereunder, using commercially reasonable efforts in good faith, to seek specific performance of the funding obligations of the parties thereunder, and complying with its obligations thereunder, (ii) satisfying on a timely basis all conditions to the Debt Financing set forth in the Debt Financing Commitment that are within Acquiror’s control and (iii) drawing the full amount of the Debt Financing then available, in the event that the Parent conditions set forth in Section 10.1 and the Surviving Company benefit from the existing lending relationships of the Group Companies Section 10.2 have been satisfied (or otherwise waived with, to the extent requested by Parent. Neither required, the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence consent of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iiiDebt Financing Sources).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 2 contracts
Sources: Master Agreement, Master Agreement (American Tower Corp /Ma/)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to consummate obtain the Equity Financing at on the terms and conditions described in the Financing Commitments, including using its reasonable best efforts (i) to negotiate definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitments, (ii) to satisfy all conditions applicable to Parent, or prior Merger Sub in such definitive agreements, (iii) to comply with its obligations under the Financing Commitments, (iv) to obtain alternative financing commitments on terms no less favorable to Parent, Merger Sub or the Company than the current Financing Commitments if the current Financing Commitments become unavailable, and (v) to not agree to any amendment or modification to be made to, or any waiver of any material provision or remedy under the Financing Commitments, if such amendment, modification, waiver or remedy reduces the aggregate amount of the Financing or amends the conditions precedent to the Effective Time.
(b) Financing in a manner that would reasonably be expected to delay or prevent the consummation of the Merger or make the funding of the Financing less likely to occur. Parent shall give the Company prompt notice (i) upon becoming aware of any material breach by any party of the Financing Commitments or any termination of the Financing Commitments. Parent shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and provide to the Company copies of all documents related to the Financing Commitments and the Financing (other than any ancillary documents subject to confidentiality agreements, including fee letters and engagement letters). In the event that (i) all conditions in Sections 6.1 and 6.3 have been satisfied (or, with respect to certificates to be delivered at the Closing, are capable of being satisfied upon the Closing) at the time when the Closing would have occurred but for the failure of the Financing Commitments to be funded, (ii) the financing provided for by the Debt Commitments has been funded or Parent has received written notification that it will be funded at the Closing if the Buyer Group Commitments are funded at the Closing, and (iii) the Company has irrevocably confirmed that if the Financing is funded such that the Closing pursuant to Section 1.2 could occur, the Company is willing to waive all conditions in Section 6.2, then Parent shall enforce its rights under the Financing Commitments to cause the Financing Commitments to be funded at the Closing. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letters, (A) Parent and Merger Sub shall promptly notify the Company and (B) Parent and Merger Sub shall use their reasonable best efforts to seek to arrange and obtain alternative financing from alternative sources on terms no less favorable to Parent, Merger Sub or the Company than the current Financing Commitments in an amount sufficient to consummate the merger which would not reasonably be expected to prevent, materially impede or delay the consummation of the transactions contemplated by this Agreement. Parent shall give the Company prompt notice of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter breach by any party thereto to the Financing Commitments or (ii) upon the receipt of any written notice from condition not likely to be satisfied, in each case, of which Parent or Merger Sub becomes aware or any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of the Financing Commitments. Parent and Merger Sub acknowledge and agree that the obtaining of the Financing, or any such alternative Financing, is not a condition to Closing. In connection with its obligations under this Section 5.9, Parent shall not be restricted from amending, modifying or replacing the Debt Commitment Letters with new Financing Commitments, including through co-investment by or financing from one or more other additional parties (the “New Sponsor Equity Commitment LetterFinancing Commitments”) if the same does not reduce the aggregate amount of Parent’s financing or amend the conditions to drawdown in a manner adverse to the Company’s interests hereunder or otherwise delay or prohibit consummation of the Merger or other transactions contemplated hereby.
(cb) Each party hereto The Company shall provide, and shall cause each of its Subsidiaries and each of its and their respective Representatives Representatives, including legal and accounting, to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company requested by Parent and that is customary in connection with the consummation arrangement of the TransactionsFinancing, and the other transactions contemplated by this Agreement, provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company, including (i) providing information as promptly as practicable relating to the Company obtaining approval and its Subsidiaries to the parties providing the Financing, (ii) participating in a reasonable number of meetings, drafting sessions and due diligence sessions in connection with the Financing, (iii) providing assistance in the preparation of (A) an increase in the size one or more offering documents or confidential information memoranda for any of the Company Board to such number as is requested Debt Financing (including the execution and delivery of one or more customary representation letters in writing by Parent connection therewith) and (B) materials for rating agency presentations, (iv) reasonably cooperating with the election to the Company Board marketing and syndicating efforts for any of the individuals who will serve as directors of the Surviving CompanyDebt Financing, in each case of clauses including providing (A) assistance in the preparation for, and participating in, meetings, due diligence sessions and similar presentations to and with, among others, prospective lenders, investors and rating agencies and (B) for the use of the Company’s logo in connection with such marketing and syndicating efforts (provided that such logo is used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries and its or their marks), (v) executing and delivering (or obtaining from advisors), and causing its Subsidiaries to execute and deliver (or obtain from advisors), customary certificates (including solvency certificates), comfort letters, legal opinions or other documents and instruments relating to guarantees, the pledge of collateral and other matters ancillary to the Financing as may be reasonably requested by Parent in connection with the Financing and otherwise facilitating the pledge of collateral and providing of guarantees contemplated by the Debt Commitment Letter; provided, however, that no obligation of the Company or any of its Subsidiaries under any such certificate, document or instrument (other than the representation letters referred to above) shall be effective as until the Effective Time and none of immediately the Company or any of its Subsidiaries shall be required to pay any commitment or other similar fee or incur any other liability in connection with the Financing prior to the Effective Time, and (iivi) providing Parent with (A) customary pay-off letters with respect to the current credit facilities of the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent its Subsidiaries and (B) recordable form lien releases, canceled notes and other documents reasonably requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee Parent prior to the Effective Time Closing indicating that all Liens resulting from such credit facilities shall be satisfied, terminated and discharged on or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective TimeClosing Date. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective TimeThe Company shall request, and Parent shall promptly promptly, upon such request, reimburse the Company for any all reasonable and documented out-of-pocket costs incurred by it the Company or any of its Subsidiaries in connection with the foregoing cooperation and shall indemnify and hold harmless the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption ofits Subsidiaries, and succession totheir respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with such cooperation or the Company’s obligations under Financing. All material, non-public information regarding the 2022 Indenture Company and its Subsidiaries provided to Parent or Merger Sub or their Representatives pursuant to this Section 5.9 shall be kept confidential by them in accordance with the Facility Agreement, including (i) customary closing certificates and other similar documents Confidentiality Agreements except for disclosure to potential financing sources as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger Financing Commitments (and (ii) then subject to customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Mergerconfidentiality protections).
Appears in 2 contracts
Sources: Merger Agreement (Goldman Sachs Group Inc/), Merger Agreement (Waste Industries Usa Inc)
Financing. (a) Subject From and after the date hereof until the earlier of the Completion and the termination of this Agreement pursuant to and in accordance with Section 9, in a timely manner so as not to delay the terms Completion, the Parent Parties shall use their reasonable best efforts to (i) take, or cause to be taken, all appropriate action, and conditions of to do, or cause to be done, all things necessary, proper or advisable to consummate, no later than the date the Completion is required to occur pursuant to this Agreement, each the Financing on the terms set forth in the Debt Agreement and (ii) satisfy or cause to be satisfied (or waived) on a timely basis all conditions to funding described in the Debt Agreement.
(b) In the event any portion of the Financing contemplated by the Debt Agreement becomes unavailable regardless of the reason therefor (as determined by Parent in its reasonable discretion after consulting with the Financing Sources), (i) Parent shall promptly notify the Company in writing of such unavailability and Merger Sub the reason therefor and (ii) Parent shall use its reasonable best efforts to consummate the Equity Financing at or prior to the Effective Time.
(b) Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provideefforts, and shall cause each of its Subsidiaries to use their reasonable best efforts, to obtain as promptly as practicable following the occurrence of such event, alternative debt financing for any such portion from alternative sources (the “Alternative Financing”) in an amount sufficient, when taken together with cash of Parent and each its Subsidiaries (but not including the Company and its Subsidiaries) and the other sources of their respective Representatives funds immediately available to provideParent at the Completion to pay the Financing Amounts and that do not include any conditions to the consummation of such alternative debt financing that are more onerous than the conditions set forth in the Debt Agreement. In addition to the foregoing, the Parent may also obtain Alternative Financing at its sole discretion which replaces the Financing, so long as the Parent is able to give the representations set forth in Section 6.2(h) with respect to such Alternative Financing as at the date such Alternative Financing becomes effective (with references to “date hereof,” the “Financing,” “Financing Sources” and “Debt Agreement” (and other like terms) in that section deemed to have been replaced with references to the date such Alternative Financing, the commitments thereunder and the agreements with respect thereto becomes effective).
(c) To the extent requested in writing by the Company from time to time, the Parent Parties shall provide the Company with updates on a reasonably current basis on the status of the Financing. The Parent Parties shall, (i) to the extent not publicly filed, provide copies of all cooperation as may be reasonably required executed credit agreements and indentures and any amendments, modifications, replacements or waivers relating to the Financing or any Indebtedness that is a takeout to the Financing (or notice that such documents have been publicly filed) within one Business Day of execution thereof and (ii) provide prompt written notice (and in any event, within two Business Days) of (A) the receipt of any written notice or other written communication from any Financing Source with respect to such Financing Source’s failure or anticipated failure to fund its commitments under any definitive agreements relating to the Financing, (B) any material breach or material default by any party to such definitive agreements of which any Parent Party obtains knowledge, (C) any actual or, to the knowledge of any Parent Party, threatened in writing, withdrawal, repudiation, or termination of any of such definitive agreements or (D) receipt of written notice or other written communication from any Financing Source relating to a material dispute or disagreement with respect to the Equity obligation to fund all or any portion of the Financing at Completion (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing or the Debt Agreement); provided that in no event will the Parent Parties be under any debt financing obligation to disclose any information that is subject to attorney-client or indebtedness of the Company in connection with the consummation of the Transactions, including similar privilege (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure provided that the Parent and Parties shall use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the Surviving Company benefit from the existing lending relationships loss of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iiisuch privilege).
(d) The Company shall use reasonable best efforts Notwithstanding anything contained in this Agreement to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession tocontrary, the Company’s Parent Parties expressly acknowledge and agree that their obligations under the 2022 Indenture and the Facility this Agreement, including their obligations to consummate the Completion, are not conditioned in any manner upon the Parent Parties obtaining the Financing or any other financing. To the extent Parent obtains Alternative Financing pursuant to Section 7.6(b) or amends, replaces, supplements, modifies or waives any of the Financing, references to the “Financing,” “Financing Sources” and “Debt Agreement” (i) customary closing certificates and other similar documents as may like terms in this Agreement) shall be reasonably requested by deemed to refer to such Alternative Financing, the trustee of commitments thereunder and the 2022 Notes or as may be required under the Facility Agreement in connection agreements with the consummation of the Transactionsrespect thereto, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the TransactionsFinancing as so amended, including the Mergerreplaced, supplemented, modified or waived.
Appears in 2 contracts
Sources: Transaction Agreement (Amgen Inc), Transaction Agreement (Horizon Therapeutics Public LTD Co)
Financing. (a) Subject to From the terms and conditions date of this AgreementAgreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX, each of Parent and Merger Sub its Affiliates shall use its reasonable best efforts to take, or cause to be taken, all actions, and use reasonable best efforts to do, or cause to be done, all things reasonably necessary or advisable, to arrange and obtain the Debt Financing and to consummate the Equity Debt Financing at on or prior to the Effective TimeClosing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: (i) comply with and maintain in effect the Debt Commitment Letter (subject to any amendment, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below); (ii) satisfy, or obtain a waiver thereof, on a timely basis all Financing Conditions to the extent within the control of Parent and its Affiliates; (iii) negotiate, execute and deliver Debt Financing Documents to the extent required to pay the Required Amount (after taking into account any cash on hand, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) and other sources of immediately available funds), which shall reflect the terms contained in the Debt Commitment Letter (including any “market flex” provisions (if any) related thereto) or on such other terms acceptable to Parent that would not constitute an Adverse Effect on Financing as compared to those set forth in the Debt Commitment Letter delivered to the Company on the date hereof; and (iv) in the event that the Offer Conditions have been satisfied or waived or, upon funding would be satisfied, consummate the Debt Financing (including by instructing the Debt Financing Sources to fund the Debt Financing in accordance with the Debt Commitment Letter, and enforcing Parent’s rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing).
(b) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX, Parent and its Affiliates shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter breach, repudiation or termination of any New Sponsor Equity Commitment Letter threatened material breach or repudiation by any party thereto to the Debt Commitment Letter of which Parent or (ii) its Affiliates becomes aware; provided that none of Parent or Merger Sub shall be required to disclose or provide any such information, the disclosure of which, in the judgement of Parent upon the receipt advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letterconfidentiality obligation.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, In the event all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness portion of the Company in connection with Debt Financing becomes unavailable on the consummation terms and conditions contemplated by the Debt Commitment Letter (including the flex provisions (if any)) (other than as a result of the TransactionsCompany’s breach of any provision of this Agreement or failure to satisfy the conditions set forth in Section 8.1 and Annex 1), including then Parent and its Affiliates shall (i) promptly notify the Company obtaining approval of thereof and the reasons therefor, (Aii) use reasonable best efforts to obtain alternative financing from the same or alternative Debt Financing Entities on terms and conditions, taken as a whole, no less favorable to Parent than the Financing Conditions, not involving any conditions that would constitute an increase Adverse Effect on Financing (as defined below) as compared to those set forth in the size of the Company Board to such number as is requested in writing by Parent and (B) the election Debt Commitment Letter delivered to the Company Board on the date hereof, that, when taken together with the portion of the individuals who will serve as directors Debt Financing that remains available and any cash on hand, available lines of the Surviving Company, in each case of clauses credit (Aincluding under Borrower’s existing revolving credit and securitization facilities) and (B), effective as other sources of immediately prior available funds, is at least equal to the Effective TimeRequired Amount, as promptly as practicable following the occurrence of such event, and (iiiii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such documents or instruments as alternative financing; provided that any provisions set forth in such new financing commitment relating to fees, pricing terms, “market flex” provisions (if any) and other terms that are customarily redacted (including any dates related thereto) may be required for redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the Surviving Company’s due assumption ofaggregate principal amount of such alternative financing to be funded on the Closing Date or impose additional conditions precedent to the funding of such alternative financing on the Closing Date.
(d) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX, and succession to, without the prior written consent of the Company, Parent and its Affiliates shall not amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter or any Debt Financing Document if such amendment, modification, supplement, restatement, assignment, substitution or replacement would (A) impose additional conditions precedent or expand upon the conditions precedent to the funding of the Debt Financing, (B) reduce the amount of the Debt Financing or the net cash proceeds available from the Debt Financing to an amount that is less than the Required Amount (after taking into account any cash on hand, available lines of credit (including under Borrower’s obligations under the 2022 Indenture existing revolving credit and the Facility Agreement, including (isecuritization facilities) customary closing certificates and other similar documents as may be reasonably requested by sources of immediately available funds), (C) prevent or materially delay or make materially less likely the trustee funding of the 2022 Notes Debt Financing (or as may be required under the Facility Agreement in connection with satisfaction of the Financing Conditions) on the Closing Date or materially impair, delay or prevent the consummation of the Transactionstransactions contemplated by this Agreement, including the Merger Offer and the Merger, (iiD) customary legal opinions as are required materially adversely affect Parent’s ability to consummate the transactions contemplated by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactionsthis Agreement, including the Merger.Offer and the Merger or (E) materially adversely impact the ability of Parent or any of its Affiliates’ to enforce their respective rights against the Debt Financing Sources or any of the other parties to the Debt Commitment Letters or the definitive agreements with respect thereto (clauses (A) through (E), each an “Adverse Effect on Financing”); provided that Parent may, without the prior written consent of the Company, amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter, including (1) to add and appoint additional arrangers,
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Herc Holdings Inc), Agreement and Plan of Merger (Herc Holdings Inc)
Financing. Each applicable Landlord shall be entitled to encumber one or more of its Hotels with a Mortgage on commercially reasonable terms and in such event, such Landlord, the applicable Owner and Manager shall be required to execute and deliver, and such Landlord agrees to require Mortgagee to execute and deliver, an instrument (a “Subordination Agreement”) which shall be recorded in the jurisdiction where any such encumbered Hotel is located, which provides that:
A. This Agreement and any extensions, renewals, replacements or modifications thereto, and all right and interest of Manager in and to such Hotel, shall be subject and subordinate to the Mortgage; and
B. If there is a foreclosure of a Mortgage in connection with which title or possession of such Hotel is transferred to the Mortgagee (or its designee) or to a purchaser at foreclosure or to a subsequent purchaser from the Mortgagee (or from its designee) (each of the foregoing, a “Subsequent Holder”), Manager shall not be disturbed in its rights under this Agreement, so long as (a) Subject no Manager Event of Default (beyond the applicable notice and cure period, if any) has occurred thereunder which entitles the applicable Owner to terminate this Agreement, and (b) the applicable Lease has not been terminated as a result of a monetary default which arises from acts or failure to act by Manager pursuant to this Agreement, provided, however, that such Subsequent Holder shall not be (a) liable in any way to Manager for any act or omission, neglect or default of the prior Landlord or Owner (b) responsible for any monies owing or on deposit with any prior Landlord or Owner to the credit of Manager (except to the extent actually paid or delivered to such Subsequent Holder), (c) subject to any counterclaim or setoff which theretofore accrued to Manager against any prior Landlord or Owner, (d) bound by any modification of this Agreement subsequent to such Mortgage which was not approved by the Mortgagee, (e) liable to Manager or beyond such Subsequent Holder’s interest in such Hotel and the rents, income, receipts, revenues, issues and profits issuing from such Hotel, or (f) required to remove any Person occupying such Hotel or any part thereof, except if such person claims by, through or under such Subsequent Holder. If a Lease is terminated as a result of a non-monetary default which was not caused by a Manager Event of Default pursuant to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to consummate the Equity Financing at Agreement or prior such Subsequent Holder succeeds to the Effective Time.
(b) Parent interest of the applicable Owner thereunder, the Mortgagee or Subsequent Holder, as applicable, and Manager shall give agree that the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter applicable Hotel will continue to be subject to this Agreement or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter stand-alone agreement with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
Hotel on substantially the same terms and provisions as this Agreement (c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may but neither the Mortgagee nor Subsequent Holder will be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required responsible to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iiipast due amounts hereunder).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 2 contracts
Sources: Master Management Agreement (Service Properties Trust), Master Management Agreement (Service Properties Trust)
Financing. (a) Subject to the terms Buyer expressly acknowledges and conditions of agrees that Buyer’s obligations under this Agreement, each of Parent and Merger Sub Agreement are not conditioned in any manner whatsoever upon Buyer obtaining any financing. Buyer shall use its reasonable best efforts to consummate the Equity Financing at or prior to the Effective Time.
(b) Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries Affiliates to use) its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or desirable to arrange and consummate the Debt Financing on the terms described in the Debt Commitment Letter (including any “market flex” provisions set forth in the Fee Letter), including using (and causing each of its Affiliates to use) its reasonable best efforts to (i) comply with its obligations under the Debt Commitment Letter and satisfy on a timely basis (or obtain a waiver of) all terms, conditions, representations and warranties applicable to Buyer and its Affiliates set forth in the Debt Commitment Letter; (ii) maintain in effect the Debt Commitment Letter on the terms and conditions contained therein (including, to the extent the same are exercised, any “market flex” provisions set forth in the Fee Letter) until the transactions contemplated by this Agreement are consummated (it being understood that the Debt Commitment Letter may be replaced or amended as provided below); (iii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained in the Debt Commitment Letter (including, to the extent the same are exercised, any “market flex” provisions set forth in the Fee Letter); (iv) enforce its rights under the Debt Commitment Letter in the event of a breach by the Debt Financing Sources or other parties thereto to the extent such breach results in a failure or material delay to consummate the transactions under this Agreement; (v) cause its senior management as well as appropriate Representatives of Buyer and its Affiliates, if applicable, to cooperate with the marketing and/or syndications efforts of the Debt Financing Sources, (vi) timely prepare the necessary offering circulars, private placement memoranda, or other offering documents or Marketing Materials with respect to the Debt Financing; (vii) commence the marketing and/or syndication activities contemplated by the Debt Commitment Letter as promptly as practicable; and (viii) subject to clause (iv) of this sentence, satisfy or cause to be waived on a timely basis all conditions to funding the Debt Financing that are applicable to Buyer in the Debt Commitment Letter on or prior to Closing; provided, however, that if funds in the amounts and on the terms set forth in the Debt Commitment Letter become unavailable to Buyer on the terms and conditions set forth therein, Buyer shall (x) notify Seller in writing of such event, (y) use reasonable best efforts to obtain Alternative Financing as promptly as possible in amounts and otherwise on terms and conditions in the aggregate, not materially less favorable, taken as a whole, to Buyer than as set forth in the Debt Commitment Letter (taking into account any “market flex” provisions related thereto), and (z) use reasonable best efforts to obtain a new debt commitment letter that provides for such Alternative Financing and promptly deliver a true, correct and complete copy thereof and any fee letter related thereto (provided, that provisions in such fee letter may be redacted in a customary manner (i.e., redacted as to pricing, economic market flex and other provisions; provided that the redacted pricing, market flex and other economic provisions set forth therein shall not affect availability or conditionality of the Debt Financing at Closing)) to Seller; provided further, that if Buyer proceeds with Alternative Financing, it shall be subject to the same obligations as set forth in this Section 5.12 with respect to the Debt Financing.
(b) Buyer shall keep Seller apprised of all material developments relating to the Debt Financing. Buyer shall promptly (and in any event within two Business Days) notify Seller of (i) the expiration or termination of the Debt Commitment Letter, (ii) any refusal by the Debt Financing Sources to provide, or any stated intent by the Debt Financing Sources to refuse to provide, the full Debt Financing contemplated by the Debt Commitment Letter, (iii) any breach or default (or any change, circumstance, fact occurrence or event that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any breach or default) by Buyer or, to the knowledge of the Buyer, any other party to the Debt Commitment Letter or definitive document that may cause Buyer to no longer be able to obtain all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms described therein (and that Buyer will not be able to obtain acceptable Alternative Financing), (iv) any change, circumstance, fact occurrence or event of which Buyer becomes aware that, with or without notice, lapse of time or both, would reasonably be expected to cause Buyer to no longer be able to obtain all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms described therein (and that Buyer will not be able to obtain acceptable Alternative Financing), or (v) receipt of any written notice or other written communication from any Person with respect to any (A) actual or potential breach, default, termination or repudiation by any party to the Debt Commitment Letter or any definitive document related to the Debt Financing or (B) material dispute or disagreement between or among any parties to the Debt Commitment Letter or any definitive document that would cause Buyer to no longer be able to obtain all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms described therein (and that Buyer will not be able to obtain acceptable Alternative Financing).
(c) Buyer shall not replace, amend or waive the Debt Commitment Letter or the Fee Letter without Seller’s prior written consent if such replacement, amendment or waiver (i) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount thereof) unless Buyer delivers to Seller evidence in form and substance reasonably acceptable to Seller that Buyer shall otherwise have available cash sufficient to consummate the Closing, (ii) imposes new or additional conditions, or otherwise expands any of the conditions, to the receipt of Debt Financing or (iii) effects any other amendment, modification or waiver that would reasonably be expected to prevent or materially delay or impede the consummation of the transactions contemplated by this Agreement. Buyer shall provide to Seller copies of any commitment letter associated with a replacement Debt Financing or Alternative Financing as well as any amendment or waiver of any debt commitment letter (including the Debt Commitment Letter) that is permitted hereunder.
(d) From the date hereof until the Closing Date, Seller shall, and shall cause the Company Group members (and its and their respective Representatives) to, at Buyer’s sole cost and expense, provide such cooperation reasonably requested by Buyer or any of its Affiliates or Representatives in connection with the arrangement of Debt Financing as required by the terms of the Debt Commitment Letter, including Commercially Reasonable Efforts to: (i) furnish Buyer with documentation and other information of Seller and the Company Group members as required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case, that has been reasonably requested in writing by Buyer not less than 5 Business Days prior to the Closing Date, (ii) facilitating instruments of discharge with respect to the Indebtedness of the Company Group required to be released prior to the Closing Date in order to transfer the Interests to Buyer free and clear of all Liens (other than Liens imposed by state and federal securities laws), pursuant to Section 2.01 on the Closing Date, (iii) facilitating the pledging of collateral to the extent required by the terms of the Debt Commitment Letter and reasonably requested by Buyer (in each case, subject to and only effective upon the occurrence of the Closing) and assist with the production of factual information required in connection with the preparation of any credit agreement, pledge and security documents, perfection certificates, mortgages, deeds of trust, hedging agreements, legal opinions reasonably requested (including on behalf of the Debt Financing Sources), legal opinion support certificates or other definitive financing documents or other documents related to the Debt Financing (including schedules, insurance certificates, and evidence of corporate authority) as may be reasonably requested by the Buyer, (iv) participation by senior management of the Seller and the Company Group in, and assistance with, (1) the preparation of rating agency presentations, (2) meetings with rating agencies, roadshows, due diligence sessions, drafting sessions and meetings with prospective lenders and debt investors and (3) the preparation of confidential information memoranda, investor presentations, lender presentations, roadshow presentations and similar customary documents as may be reasonably requested by Buyer or any Lender, in each case, with respect to information relating to the Seller and the Company Group in connection with customary marketing efforts of Buyer for all or any portion of the Debt Financing (collectively, the “Marketing Material”), (v) provide reasonable and customary authorization letters, confirmations and undertakings to the Debt Financing Sources authorizing the distribution of information relating to the Seller and the Company Group to prospective lenders (including with respect to the presence or absence of material non-public information and accuracy of the information contained therein) and subject to customary confidentiality provisions, (vi) cause the Company’s auditors to deliver customary consents and comfort letters (including “negative assurance” and “change period” comfort) with respect to the financial information relating to the Company and its subsidiaries as reasonably requested by the Debt Financing Sources and to attend accounting due diligence sessions and to provide consents for the use of their reports in any materials or disclosures relating to the Debt Financing, (vii) provide reasonably requested information relating to the compliance by the Seller and the Company Group with all applicable government laws and regulations, (viii) furnish Buyer with the financial statements and other information described in Section 5.14 and (ix) allow the usual and customary use of the logos of the Seller and the Company Group in connection with any debt financing (provided such logos shall be used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Seller’s or any Company Group member’s reputation or goodwill), subject to Seller’s prior approval of such materials; provided, however, that nothing herein shall require Seller, the Company Group members or any of their respective Representatives or Affiliates to provide, all cooperation as may take any action that would be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies Closing Date or to the extent requested by Parent. Neither it would, in Seller’s reasonable judgment, interfere unreasonably with the business or operations of Seller or its Affiliates (including the Company Group members).
(e) Neither Seller nor any of its Subsidiaries Affiliates (including the Company Group members) shall (x) be required to pay any commitment or other similar fee or make any other payment or incur any other liability or provide or agree to provide any indemnity in connection with the Debt Financing or any of the foregoing that would be effective prior to the Effective Time Closing Date or (y) would be treated as a Company Transaction Expense. None of Seller, its Affiliates or their respective Representatives shall be required to commit to taking (i) execute or enter into or perform any action Contract contemplated by the Debt Commitment Letter that is not contingent upon the Closing (including entry into any agreement) Date or that would be effective prior to the Effective TimeClosing Date (other than as contemplated under Section 5.12(d)), (ii) adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained or take any corporate actions prior to the Closing Date to permit the consummation of the Debt Financing, (iii) provide in connection with the Debt Financing any information the disclosure of which is prohibited or restricted under Applicable Law or is legally privileged, (iv) take any action which would result in either Seller, its Affiliates or any of their respective Representatives incurring any liability with respect to the matters relating to the Debt Financing or cause any director, officer or employee of Seller, its Affiliates or their respective Representatives to incur any personal liability in connection with the Debt Financing, or (v) other than with respect to current or historical financial information required to be furnished pursuant to Section 5.12(d), provide (A) pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financial information, (B) any description of all or any component of the Debt Financing (including any such description to be included in any liquidity or capital resources disclosure or any “description of notes”), (C) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing, or (D) any solvency certificate or similar certification or representation (which items (A) through (D) shall be the sole responsibility of Buyer). If None of Seller, the Company Group members, or any of their respective Representatives or Affiliates shall be required to make any representation, warranties or certifications in connection with the Debt Financing as to which, after the use of Commercially Reasonable Efforts to cause such representation, warranty or certification to be true, such Person has in its good faith determined that such representation, warranty or certification is not true. Seller shall be given a reasonable opportunity to review and comment on any financing documents and review any materials that are to be presented during any meetings conducted in connection with the Debt Financing, and Buyer shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Seller.
(f) Buyer acknowledges and agrees that Seller will not, except as set forth in this Agreement, have any liability to any Person under or in connection with, the arrangement of the Debt Financing that Buyer may raise in connection with the transactions contemplated by this Agreement. Buyer shall promptly, upon request by Seller (including following a valid termination of this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective TimeArticle 10), Parent shall promptly reimburse the Company Seller for any all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees) incurred by it Seller and the Company Group members in connection with the Company’s compliance with cooperation of Seller and its Affiliates contemplated by this Section 6.07(c)(i) through (iii).
(d) The 5.12 and shall indemnify and hold harmless Seller, the Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption ofGroup members, and succession to, the Company’s obligations under the 2022 Indenture their respective Representatives from and the Facility Agreement, including (i) customary closing certificates against any and other similar documents as may be reasonably requested all Damages suffered or incurred by the trustee any of the 2022 Notes or as may be required under the Facility Agreement them of any type in connection with the consummation arrangement of the TransactionsDebt Financing, including except to the Merger and (ii) customary legal opinions as are required by the 2022 Indenture extent such Damages arise from or the Facility Agreement in connection with gross negligence or Fraud by Seller, the consummation Company Group members of their respective Representatives.
(g) Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 8.02(b), as it applies to Seller’s obligations under this Section 5.12, shall be deemed satisfied unless Seller willfully fails to perform its obligations under this Section 5.12 and such willful failure to perform has been the primary cause of the Transactions, including the MergerDebt Financing not being obtained.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Fortress Transportation & Infrastructure Investors LLC), Membership Interest Purchase Agreement (United States Steel Corp)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions reasonably necessary to consummate and obtain the Equity Financing at or on substantially the terms and conditions described in the Commitment Letter, as adjusted by the Agreed Marketing Terms, if any, including reasonable best efforts to (i) maintain in effect the Commitment Letter and, if entered into prior to the Effective Time.
Closing, the definitive documentation with respect to the Financing contemplated by the Commitment Letter (bincluding “flex” provisions contained therein) (the “Definitive Financing Agreements”), (ii) negotiate and execute Definitive Financing Agreements on terms and conditions contemplated by the Commitment Letter (including any “flex” provisions in connection therewith), as adjusted by the Agreed Marketing Terms, if any, and, upon execution thereof, deliver a copy thereof to the Company, (iii) satisfy on a timely basis all conditions applicable to Parent and its Subsidiaries in the Commitment Letter and Definitive Financing Agreements that are within its control and comply with its obligations thereunder, and not take any action that would prevent the availability of the Financing, (iv) seek to enforce its rights under the Commitment Letter and Definitive Financing Agreements in the event of a breach or failure to fund by the financing sources that materially impedes or materially delays Closing, including by seeking specific performance against, the parties thereto (including the Commitment Party under the Commitment Letter). In the event that all conditions to the Financing have been satisfied, or upon funding will be satisfied, Parent shall use its reasonable best efforts to cause the lenders and the other Persons providing such Financing to fund on the Closing Date (including by seeking specific performance to cause such lenders and other Persons to fund such Financing) the portion of the Financing required to consummate the Merger and the transactions contemplated by this Agreement. Parent shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under, the Commitment Letter or Definitive Financing Agreements, and/or substitute other debt or equity financing for all or any portion of the Financing from the same and/or alternative financing sources, provided that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter or Definitive Financing Agreements that amends the Financing and/or substitution of all or any portion of the Financing shall not (A) expand upon or amend in any way that is adverse to the Company the conditions precedent to the Financing as set forth in the Commitment Letter or (B) be reasonably expected to prevent or materially impede or materially delay the availability of the Financing and/or the consummation of the Merger and the transactions contemplated by this Agreement. Parent shall be permitted to reduce the amount of Financing under the Commitment Letter or Definitive Financing Agreements in its reasonable discretion, provided, that Parent shall not reduce the Financing to an amount committed below the amount that is required, together with the financial resources of Parent and Merger Subsidiary, including cash on hand and marketable securities of Parent, the Company and their respective Subsidiaries, to consummate the Merger and the other transactions contemplated by this Agreement (including the payment of any Required Amounts), and provided, further, that such reduction shall not (A) expand upon or amend in any way that is adverse to the Company the conditions precedent to the Financing as set forth in the Commitment Letter or (B) be reasonably expected to prevent or materially impede or materially delay the availability of such reduced Financing and/or the consummation of the Merger and the transactions contemplated by this Agreement. If any portion of the Financing becomes unavailable or Parent becomes aware of any event or circumstance that makes any portion of the Financing unavailable, in each case, on the terms and conditions (including any “flex” provisions in connection therewith) contemplated in the Commitment Letter, as adjusted by the Agreed Marketing Terms, if any, and such portion is reasonably required to consummate the Merger and the other transactions contemplated by this Agreement (including the payment of any Required Amounts), Parent shall use its reasonable best efforts to arrange and obtain as promptly as practicable following the occurrence of such event alternative financing from the same and/or alternative financing sources in an amount sufficient to consummate the Merger and the other transactions contemplated by this Agreement (including the payment of any Required Amounts), upon terms and conditions (including any “flex” provisions) not materially less favorable, in the aggregate, to Parent than those in the Commitment Letter, as adjusted by the Agreed Marketing Terms, if any, and, if obtained, will provide the Company with a copy of the documentation with respect to such alternative financing. Parent shall give the Company prompt oral and written notice (but in any event not later than 48 hours) after Parent becoming aware (i) upon becoming aware of any breach the occurrence of any material provision of breach by any New Sponsor Equity party to the Commitment Letter or termination Definitive Financing Agreements or of any New Sponsor Equity Commitment Letter by any party thereto or condition not likely to be satisfied, (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach termination or waiver, amendment or other modification of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity the Commitment Letter.
, (ciii) Each party hereto that any of the Financing Parties no longer intends to provide the Financing or (iv) that any portion of the Financing is not available to consummate the Merger. Parent shall providekeep the Company informed on a reasonably current basis of the status of its efforts to arrange, obtain and/or consummate the Financing and shall cause each provide copies of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect the principal documents related to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions(excluding fee letters and engagement letters, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies except to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents contain any conditions to funding or instruments “flex” provisions (excluding provisions related solely to fees and economic terms (other than covenants) agreed to by the parties)) on a periodic basis of no less frequently than once a month and as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may otherwise be reasonably requested by the trustee Company. In the event that Parent commences an action to seek specific performance to enforce its rights under the Commitment Letter or the Definitive Financing Agreements and/or cause the financing sources to fund the Financing (any such action, a “Financing Action”), Parent shall (x) keep the Company reasonably informed of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation status of the Transactions, including the Merger Financing Action and (iiy) customary at the reasonable request of the Company, make Parent’s employees and legal opinions as are required advisors reasonably available to discuss the status of, and material developments with respect to, the Financing Action (subject in all cases to preserving all legal privileges). For the avoidance of doubt, the syndication of the Financing to the extent permitted by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the MergerCommitment Letter shall not be deemed to violate Parent’s obligations under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (RiskMetrics Group Inc), Merger Agreement (MSCI Inc.)
Financing. (a) Subject to the terms and conditions of this AgreementAgreement (including Section 4.13), each of Parent and Merger Sub Investor shall use its reasonable best efforts to consummate arrange for the Company to obtain the proceeds of the Debt Financing on the terms and conditions (including the flex provisions) described in the Debt Financing Commitments and any related Fee Letter and Engagement Letter, including using its reasonable best efforts to (i) maintain in effect the Debt Financing Commitments in accordance with the terms and subject to the conditions thereof, (ii) assist in the satisfaction on a timely basis of all conditions applicable to the Company (as assignee of Investor’s rights and obligations under the Debt Financing Commitments) in obtaining the Debt Financing at the Closing set forth therein (including consummating the Equity Financing on the terms set forth in the Equity Financing Commitment at or prior to Closing), and (iii) negotiate definitive agreements with respect to the Effective TimeDebt Financing on the terms and conditions (including the flex provisions) contemplated by the Debt Financing Commitments and related Fee Letter (provided that Investor shall provide copies thereof to Seller on a current basis and consider in good faith any changes or comments thereto reasonably proposed by Seller and otherwise keep Seller reasonably informed on a current basis of the status of its efforts to arrange the Debt Financing and afford Seller and the Company the opportunity to attend and participate in any scheduled meetings or negotiations relating to the Debt Financing). Investor shall not, and shall not agree with Guarantor to, enter into any amendment, supplement or other modification of, or waive any of its rights under, the Equity Financing Commitment. Investor may (i) amend, replace or modify the Debt Financing Commitments and any related Fee Letter and Engagement Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities or (ii) otherwise amend, replace or modify, or consent to any waiver of any provision or remedy under, the Debt Financing Commitments, other than any amendment, replacement, modification, consent or waiver set forth in Schedule 4.12, each of which shall require the prior written consent of Seller, which, upon request, shall be promptly given or denied. For the avoidance of doubt, nothing contained herein shall prevent Investor from reallocating the Debt Financing among the ABL Facility (as defined in the Debt Financing Commitment) and the Secured Interim Facility (as defined in the Debt Financing Commitment), in each case in accordance with the terms of the Debt Financing Commitment, or reducing the total amount of funds available under the Debt Financing, provided that in either case the representations and warranties set forth in the last sentence of Section 3.6 remain true and correct. Investor shall obtain the Equity Financing contemplated by the Equity Financing Commitment upon satisfaction or waiver of the conditions to closing in Section 6.2 (other than those conditions that by their nature will not be satisfied until the Closing and subject to and in accordance with the terms of the Equity Financing Commitment). Subject to the terms and conditions of this Agreement (including Section 4.13), in the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitments, Investor shall promptly notify Seller and shall use its reasonable best efforts to arrange for alternative financing from alternative sources (1) in an amount such that the aggregate funds that would be available to the Company at the Closing will be sufficient to pay all amounts contemplated by Section 1.3(b) of this Agreement to be paid by it and to perform its obligations hereunder, (2) with conditions to closing and funding of which are not, when taken as a whole, more onerous than those in the Debt Financing Commitments, and (3) which shall not (absent the prior written consent of Seller) include terms that would require Seller’s consent pursuant to Schedule 4.12. Investor shall promptly (and on a current basis) deliver to Seller true and complete copies of all drafts of any alternative financing commitments (and consider in good faith any changes or comments thereto reasonably proposed by Seller) and all final agreements pursuant to which any such alternative source shall have committed to provide Investor with any portion of the Debt Financing. For purposes of this Section 4.12, Section 3.6 and Section 4.13, references to “Debt Financing” shall include the financing contemplated by the Debt Financing Commitments as permitted by this Section 4.12 to be amended, modified or replaced and references to “Debt Financing Commitments”, “Fee Letter” and “Engagement Letter” shall include such documents as permitted by this Section 4.12 to be amended, modified or replaced, in each case from and after such amendment, modification or replacement.
(b) Parent Nothing contained in this Agreement or otherwise shall give require, and in no event shall the Company prompt notice reasonable best efforts of Investor be deemed or construed to require, Investor to bring any enforcement action against any source of the Financing to enforce its rights under the Financing Commitments, except that (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter Investor shall enforce, including by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall providebringing suit for specific performance, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness Commitment solely if Seller seeks and is granted a decree of specific performance of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election obligations pursuant to the Company Board terms of this Agreement to cause the individuals who will serve as directors of Equity Financing to be funded to fund the Surviving Company, in each case of clauses (A) Investment and (B), effective as of immediately prior to consummate the Investment after all conditions to the Effective Time, granting therefor set forth in Section 10.3(b) have been satisfied and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested following a written request by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective TimeSeller, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company Investor shall use its reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for enforce (including by litigation) its rights under the Surviving Company’s due assumption of, and succession Debt Financing Commitments to cause the Financing Sources thereunder to, subject to the Company’s obligations under terms and conditions of the 2022 Indenture Debt Financing Commitments and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee satisfaction or waiver of the 2022 Notes or as may be required under conditions in ARTICLE VI hereof, fund the Facility Agreement in connection with the consummation applicable portion of the Transactions, including Debt Financing at the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the MergerClosing.
Appears in 2 contracts
Sources: Investment Agreement (Unistrut International Holdings, LLC), Investment Agreement (Tyco International LTD)
Financing. (a) Subject Parent, Merger Sub and Merger LLC shall use reasonable best efforts to take, or cause to be taken, all such actions as may be necessary to arrange the Debt Financing on substantially the terms and conditions described in the Debt Commitment Letter, including (i) to negotiate and enter into the definitive agreements with respect thereto on the terms and conditions described in the Debt Commitment Letter (including, as necessary, any “flex” provisions contained in the Fee Letter) by the Closing Date and (ii) to satisfy or obtain the waiver of, on a timely basis, all conditions to obtaining the Debt Financing in accordance with the terms thereof and to comply with all of the obligations applicable to Parent pursuant to the Debt Commitment Letter and the definitive agreements related thereto. Parent, Merger Sub and Merger LLC shall use reasonable best efforts to cause the Lenders and other Persons to fund the Debt Financing required to consummate the Merger on the Closing Date. In the event that all conditions to funding the commitments contained in the Debt Commitment Letter have been satisfied, Parent, Merger Sub and Merger LLC shall use reasonable best efforts to cause the Lenders and other Persons to fund the Debt Financing required to consummate the Transactions contemplated by this Agreement, pay related fees and expenses (including paying all commitment fees when due, for repaying or refinancing the Credit Agreement or other indebtedness of the Company) and satisfy all requirements applicable to Parent, Merger Sub or Merger LLC related to or arising out of the consummation of the transactions contemplated hereby on the date of Closing. Parent, Merger Sub and Merger LLC shall give the Company prompt notice of any breach (or threatened breach) or default (or threatened default) by any party to the Debt Commitment Letter or the definitive agreements related thereto of which any of Parent, Merger Sub or Merger LLC has become aware or any termination of the Debt Commitment Letter or such definitive agreements. In the event that any portion of the Debt Financing becomes unavailable, Parent, Merger Sub and Merger LLC shall use reasonable best efforts to arrange to obtain substitute financing as promptly as practicable in equivalent amounts commitments in respect of other financing for such portion of the Debt Financing from the same or alternative bona fide third-party financing sources on terms no less favorable to Parent, Merger Sub and Merger LLC as those contained in the Debt Commitment Letter, including with respect to the conditions precedent to funding of such financing that are in the aggregate, in respect of certainty of funding, are equivalent to (or more favorable to Parent, Merger Sub and Merger LLC than) the conditions precedent set forth in the Debt Commitment Letter, to replace the Debt Financing contemplated by such expired, replaced, terminated or unavailable commitments or agreements, and on terms that do not make the timely funding of the financing or the satisfaction of the conditions to obtaining the financing less likely to occur (“Alternative Financing”) and promptly notify the Company of the foregoing. If obtained, Parent, Merger Sub and Merger LLC shall deliver to the Company true and complete copies of all commitment letters, agreements (including copies of fee letters (provided that fees, “market flex” and other economic terms which do not affect the amount, availability or conditionality of any portion thereof may be redacted)) pursuant to which any such alternative source shall have committed to provide Parent, Merger Sub and Merger LLC with Alternative Financing, including the definitive agreements related thereto. Parent, Merger Sub and Merger LLC shall (i) keep the Company reasonably informed of to the status of their efforts to arrange the Debt Financing and (ii) provide the Company with final copies of the Debt Commitment Letter, the Fee Letter (provided that fees, “market flex” and other economic terms which do not affect the amount, availability or conditionality of any portion thereof may be redacted), and the definitive agreements related thereto or any debt commitment letter, fee letter and definitive agreements in connection with any Alternative Financing, if any, and (iii) provide the Company a reasonable opportunity to review all drafts of the Debt Commitment Letter, any debt commitment letter in connection with any Alternative Financing and, in each case, the definitive agreements related thereto and to approve the final versions of each of Parent the foregoing.
(b) Parent, Merger Sub and Merger LLC shall not, without the Company’s prior written consent, permit any amendment or modification to, or any waiver of any provision or remedy under, the Debt Commitment Letter or any definitive agreements related thereto that (w) shall add any condition to obtaining the funding of the Debt Financing on the Closing Date, (x) shall reasonably be expected to (i) adversely affect the ability or likelihood of Parent, Merger Sub and Merger LLC timely consummating the transactions contemplated by this Agreement or (ii) make the timely funding of the Debt Financing or the satisfaction of the conditions to obtaining the Debt Financing less likely to occur or shall reduce the amount of the Debt Financing or (z) shall adversely affect the ability of Parent, Merger Sub or Merger LLC to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements relating thereto. Parent, Merger Sub and Merger LLC shall provide the Company with prompt written notice of the receipt of any written notice or other written communication from the Debt Financing Sources with respect to any Debt Financing Sources’ failure or anticipated failure to fund its commitments under the Debt Commitment Letter or definitive agreements in connection therewith. Parent, Merger Sub and Merger LLC shall not release or consent to the termination of the commitments and obligations of the lenders under the Debt Commitment Letter other than in accordance with the terms thereof, nor shall Parent, Merger Sub and Merger LLC terminate the Debt Commitment Letter.
(c) Parent shall have the right to substitute in equivalent amounts commitments in respect of other financing for all or any portion of the Debt Financing from the same or alternative bona fide third party financing sources so long as such alternative sources would not reasonably be expected to (i) adversely affect the ability or likelihood of Parent, Merger Sub and Merger LLC timely consummating the transactions contemplated by this Agreement, (ii) make the timely funding of the Debt Financing or the satisfaction of the conditions to obtaining the Debt Financing less likely to occur or (iii) adversely affect the ability of Parent, Merger Sub or Merger LLC to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements relating thereto (collectively with the Debt Financing, the “Available Financing” it being understood that for purposes of this Section 5.19, for the avoidance of doubt, Available Financing may include any offering of debt securities or incurrence of loans). Prior to the Closing Date, the Company shall use its reasonable best efforts to consummate the Equity Financing at or prior provide to the Effective Time.
(b) Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provideand Merger Sub, and shall cause each of its Subsidiaries and each of their respective Representatives to use its reasonable best efforts to provide, all and shall use its commercially reasonable efforts to cause its Representatives, including legal and accounting, to provide, in each case at Parent’s sole expense and on a timely basis, the cooperation reasonably requested by Parent that is necessary, proper or advisable in connection with the arrangement of the Debt Financing or any permitted replacement, amended, modified or Alternative Financing (provided that (i) such requested cooperation does not unreasonably interfere with the ongoing operations of the Acquired Companies, (ii) such requested cooperation and information required to be provided by the Company is limited to information about the Company and its operations and (iii) neither the Company nor its Subsidiaries shall be required to prepare any information, including Required Information, that requires the combination of information about the Company with any other Person, including the Parent). Such cooperation shall include:
(i) furnishing Parent and Merger Sub and their Debt Financing Sources, as promptly as reasonably practicable following Parent’s request, with such pertinent and customary information necessary to syndicate or complete the underwriting or private placement of Debt Financing as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent regarding the business, operations, financial projections and prospects of the Acquired Companies as is customary for investment grade public companies in connection with the arrangement or marketing of financings such as the Available Financing;
(ii) unless the Debt Financing or any Alternative Financing shall have been fully syndicated or funded prior thereto, (A) furnishing to Parent as promptly as reasonably practicable, and in no event later than (x) 20 calendar days after the end of the first three fiscal quarters of any fiscal year of the Company and 45 calendar days after the end of each fiscal year of the Company, unaudited balance sheets and income and cash flow statements (in each case without footnotes) of the Acquired Companies for such fiscal quarter or fiscal year and (y) 60 calendar days after the end of each fiscal year of the Company, audited balance sheets and income and cash flow statements of the Acquired Companies for such fiscal year, in each case, to the extent reasonably required by Parent to prepare pro forma financial statements of the type required by Regulation S-X and Regulation S-K promulgated under the Securities Act to syndicate or complete the offering(s) of debt securities contemplated by the Debt Commitment Letter or in connection with the Available Financing and the Transactions; (B) furnishing to Parent as promptly as reasonably practicable, but in any event no later than 90 calendar days after the election end of each fiscal year of the Company, the audited balance sheets and income and cash flow statements of the Acquired Companies for the three most recent fiscal years ended at least 90 days prior to the Closing Date prepared in accordance with GAAP as required by Regulation S-X under the Securities Act; and (C) furnishing to Parent as promptly as reasonably practicable, and in no event later than 45 calendar days after the end of each subsequent fiscal quarter of the Company ending at least 45 days prior to the Closing Date (other than the fourth quarter), unaudited balance sheets and income and cash flow statements (in each case without footnotes) of the Acquired Companies for such fiscal quarter of the Company prepared in accordance with GAAP as required by Regulation S-X under the Securities Act (it being understood that clauses (B) and (C) of this Section 5.19(c)(ii) shall be deemed satisfied upon the filing with the SEC of the Company’s 10-K or 10-Q, as applicable, to the extent such financial statements are contained therein) (the information, financial statements, pro forma financial statements business and other financial data and financial information referred to above shall mean the “Required Information”);
(iii) reasonably assisting Parent in the preparation of pro forma financial statements and other financial data and financial information of the Acquired Companies necessary to syndicate or complete the underwriting or private placement of Debt Financing; it being understood that neither the Company nor its Subsidiaries shall be required to prepare any information, including Required Information, that requires the combination of information about the Company with any other Person, including the Parent);
(iv) using reasonable best efforts to obtain customary accountants’ comfort letters and consents of accountants to the use of their reports in any materials relating to the Available Financing;
(v) participating in a reasonable number of meetings (including one-on-one meetings with the parties acting as lead arrangers, bookrunners, underwriters or agents for, and prospective lenders and purchasers of, the Available Financing and senior management and Representatives, with appropriate seniority and expertise, of the Company), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Available Financing at times and dates reasonably acceptable to the Company;
(vi) reasonably assisting with the preparation of materials for rating agency presentations, bank information memoranda and similar documents required in connection with the Available Financing, by providing information about the Acquired Companies available to the Company Board and execution and delivery of the individuals who will serve as directors of the Surviving Companycustomary representation letters in connection with bank information memoranda;
(vii) taking corporate actions, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior subject to the occurrence of the Effective Time, reasonably requested by Parent shall promptly reimburse to permit the Company for any reasonable consummation of the Available Financing and documented out-of-pocket costs incurred to permit the proceeds thereof to be made available to the Surviving Corporation or the Surviving Company, as applicable, immediately after the Effective Time;
(viii) reasonably assisting in the negotiation, preparation and execution of one or more credit agreements, indentures, underwriting agreements or purchase agreements, in each case, on terms that are reasonably requested by it Parent in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).Available Financing; provided that no obligation of any Acquired Company under any such agreements or amendments shall be effective until the Effective Time;
(dix) The subject to confidentiality provisions, providing customary authorization letters to the Debt Financing Sources;
(x) cooperating reasonably with the Debt Financing Sources’ and Parent’s underwriters’ due diligence, to the extent reasonable;
(xi) using commercially reasonable efforts to arrange for customary payoff letters, lien terminations and instruments of discharge to be delivered at Closing providing for the payoff, discharge, lien release and termination on the Closing Date of all indebtedness contemplated by the Debt Commitment Letter to be paid off, discharged and terminated on the Closing Date;
(xii) as soon as practicable, furnishing written notice to Parent if the Company shall use reasonable best efforts have knowledge of (A) any facts as a result of which a restatement of any financial statements for such financial statements to obtaincomply with GAAP is probable or (B) that the Required Information ceases to be Compliant; and
(xiii) providing within three (3) Business Days after any request therefor from Parent, execute all documentation and deliver such documents other available information with respect to the Acquired Companies that are required by regulatory authorities under the applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act of 2001 and requested by Parent at least ten (10) Business Days prior to the Closing Date; provided, however, that, no obligation of any of the Acquired Companies under any agreement, certificate, document or instruments as may instrument (other than the authorization letters referred to above) shall be effective until the Effective Time and, none of the Acquired Companies nor their respective Representatives shall be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and to pay any commitment or other similar documents as may be reasonably requested by the trustee of the 2022 Notes fee or as may be required under the Facility Agreement incur any other liability in connection with the consummation Available Financing prior to the Effective Time. Notwithstanding the foregoing, (1) none of the Transactions, including Acquired Companies shall be required to pay any commitment or other similar fee or incur prior to the Merger and (ii) customary legal opinions as are required by the 2022 Indenture Closing Date any other liability or the Facility Agreement obligation in connection with the consummation Debt Financing, (2) none of the TransactionsAcquired Companies nor their respective officers, including directors or employees shall be required to execute or enter into or perform any agreement with respect to the Merger.Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Closing (other than the authorization letters referred to above), or take any actions which would violate its organizational documents or applicable laws and (3) nothing shall obligate any of the Acquired Companies to provide, or cause to be provided, any legal opinion by its counsel, or to
Appears in 2 contracts
Sources: Merger Agreement (CBOE Holdings, Inc.), Merger Agreement (Bats Global Markets, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to (i) maintain in effect the Financing Commitments and to satisfy the conditions to obtaining the Financing set forth therein, (ii) enter into definitive financing agreements with respect to the Financing as contemplated by the Financing Commitments (the “Financing Agreements”), so that the Financing Agreements are in effect as promptly as practicable but in any event no later than the Closing Date and (iii) consummate the Equity Financing at or prior to the Effective Time.
(b) Closing. Parent shall give provide to the Company prompt notice (i) upon becoming aware copies of any breach all final documents relating to the Financing and shall keep the Company informed of any material provision the status of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall providefinancing process relating thereto. The Company shall, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession Subsidiaries to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents provide such cooperation as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement Parent in connection with the consummation Financing; provided that, the Company shall not be required to provide any such assistance which would interfere unreasonably with the business or operations of the TransactionsCompany and the Company Subsidiaries and provided, including further, that, Parent shall promptly, upon request by the Merger Company, reimburse the Company for all reasonable out-of-pocket third party costs incurred by the Company or any of the Company Subsidiaries in connection with such cooperation.
(b) If, notwithstanding the use of reasonable best efforts by Parent to satisfy its obligations under Section 6.18(a), any of the Financing Commitments or the Financing Agreements expire or are terminated prior to the Closing, in whole or in part, for any reason, Parent shall (i) promptly notify the Company of such expiration or termination and the reasons therefor and (ii) customary legal opinions as are required use its reasonable best efforts promptly to arrange for alternative debt financing (upon terms and conditions substantially comparable to those contained in such expired or terminated commitments or agreements, except with respect to economic terms and conditions, which shall be no less favorable than those contained in such expired or terminated commitments or agreements) to replace the financing contemplated by such expired or terminated commitments or agreements in an amount sufficient to permit Parent to consummate the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Mergertransactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Quantum Corp /De/), Merger Agreement (Advanced Digital Information Corp)
Financing. (a) Subject to the terms and conditions of this AgreementSection 5.14, each of Parent and Merger Sub Newco shall use its reasonable best efforts to consummate (i) cause the Equity conditions and comply with the obligations that are set forth in the Newco Commitment Letter applicable to, and within the control of, or that require the cooperation of, Newco to be fulfilled (or waived, if deemed advisable by Newco) in a timely fashion in accordance with its terms, (ii) maintain the Newco Commitment Letter in effect until the earlier of the initial funding of the Newco Financing at or prior the date that the Newco Financing Agreements (as defined below) become effective, (iii) negotiate definitive agreements with respect thereto, on the terms and conditions contained therein (including the “market flex” provisions) or on such other terms that would not be prohibited by Section 5.14(e) (the “Newco Financing Agreements”) and (iv) if all conditions precedent under the Newco Commitment Letter or the Newco Financing Agreements have been satisfied, on the Closing Date, cause the Newco Financing Sources to fund the Effective TimeNewco Financing.
(b) Parent Subject to the terms and conditions of this Section 5.14, Athena shall use, prior to the Amendment Effective Date, reasonable best efforts to (i) cause the conditions and comply with the obligations that are set forth in the Athena Commitment Letter applicable to, and within the control of or that require the cooperation of, Athena to be fulfilled (or waived, if deemed advisable by Athena) in a timely fashion in accordance with its terms, (ii) maintain the Athena Commitment Letter in effect until the earlier of the initial funding of the Athena Financing or the occurrence of the Amendment Effective Date, (iii) negotiate definitive agreements with respect to the Athena Commitment Letter, on the terms and conditions contained therein or on such other terms that would not be prohibited by Section 5.14(f) (the “Athena Financing Agreements”) and (iv) if all conditions precedent under the Athena Commitment Letter or the Athena Financing Agreements have been satisfied cause the Athena Financing Sources to consummate the Athena Financing.
(c) Athena and Newco shall each give the Company other prompt written notice (i) upon becoming aware of any breach of any material provision breach (or threatened material breach) or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any New Sponsor Equity Commitment Letter material breach or termination of any New Sponsor Equity Commitment Letter default) by any party thereto to their respective Commitment Letters or their respective Financing Agreements, (ii) upon of the receipt of any written notice from of any party to a New Sponsor Equity Commitment Letter with respect to actual or threatened withdrawal, repudiation or termination of either Financing by any threatened breach of the respective Financing Sources, (iii) of the receipt of any written notice of any material provision dispute or disagreement between or among any of such New Sponsor Equity the parties to their respective Commitment Letters or their respective Financing Agreements, (iv) of any amendment or modification of, or waiver under, their respective Commitment Letters or their respective Financing Agreements or (v) if for any reason either believes in good faith that it will not be able to timely obtain all or any portion of the Newco Financing or the Athena Financing (to the extent the Athena Commitment Letter is still in effect), as applicable, on the terms and conditions and in the manner or from the sources contemplated by the Newco Commitment Letter or threatened termination of any such New Sponsor Equity the Athena Commitment Letter, as applicable, or the Newco Financing Agreements or the Athena Financing Agreements, as applicable.
(cd) Each party hereto Newco and Athena shall providekeep one another informed upon reasonable request and in reasonable detail, and shall cause each as soon as reasonably practicable (but in any event within three Business Days upon receipt of its Subsidiaries and each such reasonable request) of the status of their respective Representatives efforts to providearrange the Newco Financing and the Athena Financing, all cooperation as may be applicable. In addition, Athena shall keep Newco informed upon reasonable request and in reasonable detail, as soon as reasonably required with respect to the Equity Financing or practicable (but in any debt financing or indebtedness event within three Business Days upon receipt of such reasonable request) of the Company in connection with the consummation status of the Transactions, including effectiveness of the Athena Credit Agreement Amendment. The terms and conditions of (i) the Company obtaining approval of (A) an increase Newco Financing Agreements shall be reasonably satisfactory in the size of the Company Board form and substance to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, Athena and (ii) the Company using commercially reasonable efforts to ensure that the Parent Athena Financing Agreements and the Surviving Company benefit from the existing lending relationships of the Group Companies any Athena Credit Agreement Amendment, in each case to the extent requested by Parent. Neither such agreement becomes effective, shall be reasonably satisfactory in form and substance to Newco.
(e) Newco may not amend, modify, replace, waive or change any material provision in the Company nor Newco Commitment Letter or any of the Newco Financing Agreements in any material respect without obtaining the prior written consent of Athena (such consent not to be unreasonably withheld, conditioned or delayed) (it being understood that, among other things, any amendment, modification, replacement, waiver or change to the ability of Newco or any of its Subsidiaries affiliates to approve the selection of financial institutions or other entities that will participate as term lenders under the Newco Commitment Letter or the Newco Financing Agreements, and the allocations of commitments to the lenders thereunder, shall (x) be required an amendment, modification, replacement, waiver or change of a material provision in a material respect). Notwithstanding anything to pay the contrary set forth herein, Newco may modify, supplement, or amend the Newco Commitment Letter or any commitment of the Newco Financing Agreements, to add lead arrangers, bookrunners, syndication agents, documentation agents, lenders or similar fee prior entities that have not executed the Newco Commitment Letter as of the date hereof. In such event, the term “Newco Commitment Letter” as used herein shall be deemed to the Effective Time include such new or (y) be required to commit to taking any action that is not contingent upon the Closing amended commitment letters (including entry all exhibits, schedules, and attachments thereto) and fee letters entered into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior this Section 5.14(e), the term “Newco Financing” as used herein shall be deemed to include any substitute financing obtained in accordance with this Section 5.14(e), and the term “Newco Financing Agreements” shall be deemed to include the new or amended definitive agreements with respect to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it Newco Financing entered into in connection accordance with the Company’s compliance with this Section 6.07(c)(i) through (iii5.14(e).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 2 contracts
Sources: Merger Agreement (Ecolab Inc.), Merger Agreement (Apergy Corp)
Financing. (a) Subject Without limiting any of the obligations of Sellers under Section 5.5 of this Agreement, Acquiror shall use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, prior to the Closing Date, all things necessary, proper or advisable to arrange the Financing on the terms and conditions of this Agreementdescribed in the Commitment Letters (including the “flex provisions” in the related fee letter), each of Parent and Merger Sub shall use its including using reasonable best efforts to consummate the Equity Financing at or to, prior to the Effective Time.
(b) Parent shall give the Company prompt notice Closing Date, (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity maintain in effect the Debt Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon until the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness earlier of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure date that the Parent Closing has occurred and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action date that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is it has been terminated in accordance with its terms prior and satisfy on a timely basis all conditions applicable to Acquiror obtaining the Financing set forth in the Commitment Letters, (ii) negotiate and enter into definitive agreements with respect thereto that are in form and substance reasonably satisfactory to Acquiror and on the terms and conditions contemplated by the Debt Commitment Letter (including any related flex provisions) or on other terms in the aggregate not less favorable to Acquiror and the Companies, in the aggregate, (iii) timely prepare the necessary offering circulars, private placement memoranda, or other offering documents or marketing materials with respect to the occurrence Debt Financing, and (iv) assist with the syndication activities contemplated by the Debt Commitment Letter. Acquiror shall give Sellers prompt notice (A) of any actual or threatened breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any breach or default) by any party to any Commitment Letter or definitive document related to the Financing of which Acquiror becomes aware and which would reasonably be expected to result in Acquiror not receiving the Debt Financing or Equity Financing at the Closing, (B) if and when Acquiror becomes aware, or receives oral or written notice, that any portion of the Effective TimeFinancing contemplated by any Commitment Letter may not be available to consummate the transactions contemplated hereby, Parent and (C) of any termination of any Commitment Letter. Acquiror shall promptly reimburse keep Sellers informed on a reasonably current basis in reasonable detail of the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best status of their efforts to obtain, execute and deliver such documents or instruments as may be required for arrange the Surviving Company’s due assumption ofFinancing. Acquiror shall (1) comply in all material respects with each Commitment Letter, and succession (2) except as contemplated by the Commitment Letters, not permit, without the prior written consent of Sellers, any amendment or modification to be made to, the Company’s obligations or any waiver of any provision or remedy under the 2022 Indenture and Commitment Letters if such amendment, modification or waiver would (x) reduce the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee aggregate amount of the 2022 Notes Debt Financing (including by changing the amount of fees to be paid or as may original issue discount of the Debt Financing unless the Equity Financing is increased by a corresponding amount), (y) impose new or additional conditions, or otherwise amend, modify or expand any conditions, to the receipt of the Debt Financing in a manner that would reasonably be required under expected to (I) delay or prevent the Facility Agreement in connection Closing, (II) make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (III) adversely impact the ability of Acquiror to enforce its rights against the other parties to the Debt Financing Commitments or the definitive agreements with respect thereto, the ability of Acquiror to consummate the transactions contemplated hereby or the likelihood of consummation of the Transactionstransactions contemplated hereby (provided that the existence or exercise of “flex provisions” and/or the addition of any additional arranger, including lead arranger, agent or other Lender (if the Merger and addition of such additional parties, individually or in the aggregate, would not be reasonably likely to (iiX) customary legal opinions as are required by delay or prevent the 2022 Indenture Closing, (Y) make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (Z) adversely impact the ability of Acquiror to enforce its rights against the other parties to the Debt Financing Commitments or the Facility Agreement in connection definitive agreements with respect thereto, the ability of Parent to consummate the transactions contemplated hereby or the likelihood of consummation of the Transactionstransactions contemplated hereby) shall not constitute an amendment, modification or waiver of the Commitment Letters requiring the prior written consent of Sellers hereunder or otherwise constitute a breach hereof). Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 6.6 or elsewhere in this Agreement shall require, and in no event shall the “reasonable best efforts” of Acquiror be deemed or construed to require, Acquiror to (A) seek the Equity Financing from any source other than those counterparty to, or in any amount in excess of that contemplated by, the Equity Commitment Letter, (B) seek or accept Debt Financing on terms adverse to or less favorable than those set forth in the Debt Commitment Letter (including the Merger“flex provisions”) provided on the date of this Agreement, (C) waive any terms or conditions of this Agreement, (D) pay any fees in excess of those contemplated by the Commitment Letters (whether to secure waiver of any conditions contained therein or otherwise) or (E) enforce their rights against counterparties to the Commitment Letters except with respect to a draw down of the proceeds of the Debt Financing as provided in clause (b) of the third sentence of Section 11.14. In no event shall Acquiror have any Liability for breach of its covenants or agreements in this Section 6.6 if the Closing occurs.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Gates Global Inc.), Stock Purchase Agreement (Pinafore Holdings B.V.)
Financing. (a) Subject to As of the terms and conditions date of this Agreement, each P▇▇▇▇▇ has delivered to the Company a true and complete copy of Parent the executed Debt Commitment Letter and Merger Sub shall use its reasonable best efforts the Debt Fee Letters, which Debt Fee Letters have been redacted for fees, pricing terms, “market flex” provisions (if any) and other terms that are customarily redacted (including any dates related thereto), none of which would reasonably be expected to consummate reduce the Equity aggregate principal amount of the Debt Financing at to be funded on the Closing Date or impose additional conditions precedent to the funding of the Debt Financing on the Closing Date. The Debt Commitment Letter has not been amended or modified in any manner prior to the Effective Time.
date of this Agreement. As of the date of this Agreement, neither Parent nor any of its Affiliates has entered into any agreement, side letter or other commitment or arrangement relating to the financing of the transactions contemplated by this Agreement, including the Offer and the Merger, that imposes conditions precedent to the funding of the Debt Financing on the Closing Date or would otherwise affect the availability of the Debt Financing on the Closing Date, in each case, other than the Debt Commitment Letter and the Debt Fee Letters or any customary engagement letters or non-disclosure agreements which do not impact the conditionality or amount of the Debt Financing and that, in the case of such customary engagement letters, copies of which (bthat may include customary redactions) have been delivered to the Parent shall give as of the Company prompt notice date hereof. Assuming satisfaction of the Offer Conditions and that the Debt Financing is funded on the Closing Date in accordance with the Debt Commitment Letter, as of the date of this Agreement, the aggregate proceeds of the Debt Financing (i) upon becoming aware both before and after giving effect to the exercise of any breach or all “market flex” provisions (if any) related thereto), together with any cash on hand, available lines of any material provision credit (including under Borrower’s existing revolving credit and securitization facilities) and other sources of any New Sponsor Equity Commitment Letter or termination immediately available funds of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party Parent, will be sufficient to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including finance (i) the Company obtaining approval of (A) an increase in the size payment of the Company Board to such number as is requested in writing by Parent and (B) the election to aggregate Per Share Price, the Company Board PSU Consideration and Company RSA Consideration to which holders of the individuals who Company Common Stock, Company PSUs and Single-Trigger RSAs will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to be entitled at the Effective Time, Time pursuant to this Agreement and (ii) the Company using commercially reasonable efforts to ensure that payment of all fees and expenses, in the Parent case of each of clauses (i) and the Surviving Company benefit from the existing lending relationships of the Group Companies (ii), to the extent requested required to be paid by Parent. Neither Parent or Merger Sub on the Closing Date in connection with consummation of the transactions contemplated by this Agreement, including the Offer, the Merger, repaying all principal, interest and fees outstanding under the Company nor Credit Agreement and the Redemption and/or Discharge (the minimum amount sufficient to finance such payments, the “Required Amount”). As of the date of this Agreement, the commitments contained in the Debt Commitment Letter have not been withdrawn or rescinded in any respect. As of its Subsidiaries shall the date of this Agreement, the Debt Commitment Letter is in full force and effect and represent valid, binding and enforceable obligations (xsubject to the Enforceability Limitations) of Parent and, to the Knowledge of Parent, each other party thereto to provide the financing contemplated thereby subject only to the satisfaction or waiver of the Financing Conditions. Parent has fully paid (or caused to be required to pay paid) any commitment and all fees that are due and payable on or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If date of this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation Debt Financing. Assuming performance by the Company and its Affiliates of their respective obligations under this Agreement, as of the Transactionsdate of this Agreement, including no event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default on the Merger and part of Parent or, to the Knowledge of Parent, any other party thereto under any term of the Debt Commitment Letter. As of the date of this Agreement, P▇▇▇▇▇ has no reason to believe that it or any other party thereto will be unable to satisfy on a timely basis any term of the Debt Commitment Letter. Assuming satisfaction of the Offer Conditions, as of the date of this Agreement, Parent has no reason to believe that (i) any of the Financing Conditions will not be satisfied or (ii) customary legal opinions as the Debt Financing will not be made available to Parent on the Closing Date. Parent and Merger Sub expressly agree and acknowledge that their obligations hereunder, including P▇▇▇▇▇’s and Merger Sub’s obligations to consummate the Offer and the Merger, are required by the 2022 Indenture not subject to, or conditioned on, Parent’s or Merger Sub’s consummation of any financing arrangements, Parent’s or Merger Sub’s obtaining of any financing or the Facility Agreement in connection with the consummation availability, grant, provision or extension of the Transactions, including the any financing to Parent or Merger.
Appears in 2 contracts
Sources: Merger Agreement (United Rentals, Inc.), Merger Agreement (United Rentals North America Inc)
Financing. (a) Subject The Parent Entities shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Financing on the terms and conditions of this Agreementdescribed in the Financing Commitments, each of Parent and Merger Sub shall use including using its reasonable best efforts to (i) maintain in effect the Financing Commitments, in accordance with the terms and subject to the conditions thereof (it being further understood and agreed that Parent may not amend, supplement, modify or waive any provision of Financing Commitments in any way that would reasonably be expected to adversely impact or delay in any material respect the ability of the Parent Entities to consummate the Equity Merger in accordance with this Agreement or the Financing on the terms and conditions described in the Financing Commitments as in effect on the date hereof), (ii) timely negotiate all definitive documents evidencing the Financing, timely satisfy all conditions to the Financing and otherwise consummate the Financing at or prior to the Effective TimeClosing, and (iii) enforce the Financing Commitments. Notwithstanding anything to the contrary contained in this Agreement (including the foregoing provisions of this Section 6.10(a)), in no event shall the obligations of the Parent Entities hereunder be construed to require any Parent Entity or any of their Affiliates to enforce by litigation any of its rights pursuant to the Debt Financing Commitment or otherwise against any of Parent’s Debt Financing sources.
(b) Parent shall give keep the Company prompt notice (i) upon becoming aware informed on a reasonably current basis in reasonable detail of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each status of its Subsidiaries efforts to obtain and each consummate the Debt Financing. Parent shall furnish correct and complete copies of their respective Representatives to provide, all cooperation as may be reasonably required definitive agreements entered into by Parent (or any of the Parent Entities) with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election Debt Commitment Letter to the Company Board promptly upon their execution, provided that the same pricing terms, fee amounts and economic terms redacted from the Debt Fee Letter provided to the Company may be redacted from such definitive agreements. In the event any portion of the individuals who will serve as directors of Debt Financing becomes unavailable on the Surviving Companyterms and conditions (including the flex provisions) contemplated in the Debt Commitment Letter, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company Entities shall use their reasonable best efforts to obtainarrange to obtain alternative financing from alternative sources in an amount sufficient to consummate the transactions contemplated by this Agreement (any such alternative Debt Financing, execute and deliver “Alternative Debt Financing”); provided, that any such documents or instruments as may be required for Alternative Debt Financing shall not, without the Surviving Company’s due assumption of, and succession to, prior written consent of the Company’s obligations under the 2022 Indenture and the Facility Agreement, including Company (i) customary closing certificates and other similar documents as may be reasonably requested reduce the aggregate amount of the Debt Financing available on the Closing Date or the length of the commitment therefor, from that contemplated by the trustee of Debt Financing Letter as in effect on the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactionsdate hereof, including the Merger and (ii) customary legal opinions expand upon the conditions precedent to the Debt Financing as are required by set forth in the 2022 Indenture Debt Financing Letter as in effect on the date hereof or (iii) in any way reasonably be expected to adversely impact or delay in any respect the ability of Parent and Sub to consummate the Merger in accordance with this Agreement or the Facility Agreement Financing on the terms and conditions described in connection with the consummation Financing Commitments as in effect on the date hereof. Parent shall furnish correct and complete copies of all definitive agreements relating to the Alternative Debt Financing to the Company promptly upon their execution, provided that the pricing terms, fee amounts and economic terms contained in the agreements governing the Alternative Debt Financing that correspond to such terms that were redacted from the Debt Fee Letter provided to the Company may also be redacted from such definitive agreements. Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the Transactionsstatus of its efforts to obtain and consummate the Alternative Debt Financing. In the event Alternative Debt Financing is arranged in accordance with this Section 6.10(b), including the Mergerterm “Financing Commitments” shall mean the commitment letter(s) for such Alternative Debt Financing.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Lmi Aerospace Inc)
Financing. (a) Each of Parent and Sub shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, the Financing Commitments; except that that Parent and Sub may (x) modify the terms and conditions of the Debt Financing Commitment so long as such modifications would not reasonably be expected to adversely impact the ability of Parent or Sub to timely consummate the transactions contemplated by this Agreement or the likelihood of consummation of the transactions contemplated by this Agreement and (y) replace or amend the Debt Financing Commitment to add lenders, arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Financing Commitment as of the date hereof, or otherwise so long as such replacement or amendment would not reasonably be expected to adversely impact or delay in any material respect the ability of Parent or Sub to consummate the transactions contemplated hereby or the likelihood of the consummation of the transactions contemplated hereby. Subject to the terms and conditions of this AgreementAgreement (including Section 6.09(b) and Section 6.10), each of Parent and Merger Sub shall use its reasonable best efforts (taking into account the anticipated timing of the Marketing Period) to consummate take all actions, and to do all things reasonably necessary, proper or advisable to arrange and obtain the Equity proceeds of the Financing at (including the Bridge Loans (as defined in the Debt Financing Commitment), if the funding of the Notes (as defined in the Debt Financing Commitment) as contemplated by the Debt Financing Commitment has not occurred substantially concurrently with or prior to the Effective Time.
Merger Closing) on the terms and conditions (bincluding the related flex provisions) described in the Financing Commitments and the Fee Letter, including using its reasonable best efforts to (i) maintain in effect the Financing Commitments in accordance with the terms and subject to the conditions thereof, subject to the foregoing replacement and amendment rights with respect to the Debt Financing Commitment, (ii) satisfy on a timely basis (taking into account the anticipated timing of the Marketing Period) all conditions applicable to Parent and Sub obtaining the Financing at the Merger Closing set forth therein that are within their control, (iii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms and conditions (including the flex provisions) contemplated by the Debt Financing Commitment and the Fee Letter (and provide copies thereof to the Company promptly upon their execution and otherwise keep the Company reasonably informed on a reasonably current basis of the status of their efforts to arrange the Debt Financing) and (iv) upon satisfaction of the conditions set forth in such definitive agreements, consummate the Financing substantially concurrent with the Merger Closing. Subject to the terms and conditions of this Agreement (including Section 6.09(b) and Section 6.10), in the event any portion of the Debt Financing becomes unavailable on the terms and conditions (including the flex provisions) contained in the Debt Financing Commitment and the Fee Letter (other than due to the failure of a condition to the consummation of the Debt Financing resulting from a breach of any representation, warranty, or covenant of the Company set forth in this Agreement), Parent shall promptly notify the Company and shall use its reasonable best efforts to arrange to obtain alternative debt financing (including from alternative sources) no later than August 19, 2011 in an amount such that the aggregate funds that would be available to Parent and Sub at the Merger Closing under such alternative debt financing (when combined with the Equity Financing and cash on hand of the Company) will be sufficient to pay all amounts contemplated by this Agreement to be paid by them and to perform their respective obligations under this Agreement, provided that neither Parent nor Sub shall be required to arrange for or obtain any such alternative debt financing (unless Parent and Sub otherwise determine in their sole discretion) on terms and conditions (including flex provisions) that are less favorable to the interests of Parent and Sub than the terms contained in the Debt Financing Commitment and the Fee Letter. Parent shall give the Company prompt notice (i) upon becoming aware of any breach by any party to any of the Financing Commitments of which Parent or Sub becomes aware, or any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Financing Commitments. Parent and (B) the election shall promptly deliver to the Company Board true and complete copies of all agreements pursuant to which any such financing source shall have committed to provide Parent and Sub with any portion of the individuals who will serve Financing. For purposes of this Section 6.09, Section 6.10 and Section 5.03, references to “Financing” and “Debt Financing” shall include the financing contemplated by the Financing Commitments as directors of the Surviving Companypermitted by this Section 6.09 to be amended, modified or replaced and references to “Financing Commitments”, “Debt Financing Commitment” and “Fee Letter” shall include such documents as permitted by this Section 6.09(a) to be amended, modified or replaced, in each case of clauses (A) from and (B)after such amendment, effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment modification or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)replacement.
(db) The Company Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 6.09 shall require, and in no event shall the reasonable best efforts of Parent or Sub be deemed or construed to require, either Parent or Sub to (i) bring any enforcement action against any source of the Equity Financing to enforce its respective rights under the Equity Financing Commitment, except that Parent shall use its reasonable best efforts to obtainenforce, execute and deliver such documents or instruments as may be required including by bringing suit for the Surviving Company’s due assumption of, and succession tospecific performance, the Company’s obligations under Equity Financing Commitment solely if the 2022 Indenture Company seeks and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee is granted a decree of specific performance of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including obligation to consummate the Merger and (ii) customary legal opinions as are required by Closing after all conditions to the 2022 Indenture or the Facility Agreement granting thereof set forth in connection with the consummation of the Transactions, including the Merger.Section
Appears in 2 contracts
Sources: Merger Agreement (CD&R Associates VIII, Ltd.), Merger Agreement (Emergency Medical Services CORP)
Financing. (a) Subject Prior to the Effective Time, Allied, A-Sub and B-Sub shall provide to the trustees under the Indentures all such notifications, certificates, opinions and other information and documents as may be required by the Indentures or the trustees under the Indentures in connection with the Merger and the payoff and termination of the Allied Credit Facility and the Allied Accounts Receivable Facility and, in each case, the release of collateral thereunder.
(b) Republic shall use its best efforts to take, or cause to be taken, all things necessary, proper or advisable to arrange and consummate the financing (the “Debt Financing”) necessary to provide immediately available funds sufficient to refinance
(i) the Republic Credit Facility to the extent necessary or advisable, (ii) Allied’s $1.575 billion Revolving Credit Facility due March 2012, (iii) Allied’s $806.7 million Term Loan B due March 2014, referred to as the 2005 Term Loan, (iv) Allied’s $485 million Institutional Letter of Credit Facility due March 2014, (v) Allied’s $25 million Incremental Revolving Letter of Credit Facility due March 2012 and (vi) Allied’s $400 million Account Receivable Securitization program (the “Allied Accounts Receivable Facility”), including using reasonable best efforts to (A) enter into definitive agreements with respect thereto on terms and conditions acceptable to Allied (in its reasonable discretion) and (B) consummate the Debt Financing on or prior to the Effective Time. Republic shall (x) furnish correct and complete copies of this Agreementall such definitive agreements to Allied promptly upon their execution, each and (y) keep Allied informed on a reasonably current basis and in reasonable detail of Parent the status of its efforts to arrange the Debt Financing and Merger Sub shall give Allied prompt notice of any material adverse change with respect to such Debt Financing and (z) use its best efforts to cause the lenders and the other Persons providing such Debt Financing to fund the Debt Financing on the Closing Date (including taking enforcement action to cause such lenders and other Persons to provide such Debt Financing). Prior to the Closing, Allied shall use its reasonable best efforts to consummate cooperate with Republic in arranging, consummating and funding the Equity Financing at or prior Debt Financing, and if requested by Republic, the refinancing of the Republic Credit Facility, including making Allied’s officers available to the Effective Time.
(b) Parent shall give arrangers of the Company prompt notice (i) upon becoming aware Debt Financing and such refinancing and potential lenders, and providing such information reasonably requested by the arrangers of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of Debt Financing and such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letterrefinancing and potential lenders.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect Notwithstanding anything to the Equity Financing or any debt financing or indebtedness of the Company contrary in connection with this Agreement, Republic acknowledges and agrees that the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as Merger is requested in writing not conditional upon receipt by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor Republic or any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence Affiliates of the Effective Time, Parent shall promptly reimburse proceeds of the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)Debt Financing.
(d) The Company Each of Republic and Allied shall use reasonable its respective best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption ofnot do, and succession toto not cause or permit to be done, anything that would reasonably be expected to cause the Companycondition to closing set forth in Section 8.03(e) to not be satisfied and shall use its respective best efforts to take any actions necessary (subject to the other’s obligations under consent if 46 required pursuant to Section 6.01(a) or Section 6.01(b), as applicable) to ensure that the 2022 Indenture and the Facility Agreement, including (icondition to closing set forth in Section 8.03(e) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Mergeris satisfied.
Appears in 2 contracts
Sources: Merger Agreement (Allied Waste Industries Inc), Merger Agreement (Republic Services Inc)
Financing. (a) Subject Parent and Merger Subsidiary shall use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable or proper to obtain the proceeds of the Financing contemplated by the Commitment Letters on or prior to the Closing Date on the terms and conditions of this Agreement, each of and in the amounts described in the Commitment Letters (including any “flex” provisions) or such other terms and conditions that are more favorable to Parent and Merger Sub shall use Subsidiary, including (i) maintaining in effect the Commitment Letters and any Definitive Debt Financing Agreements (as defined below) and complying with its obligations thereunder, (ii) satisfying on a timely basis, taking into consideration the timing of the Closing and the completion of the Marketing Period, and in a manner that will not impede the ability of the parties hereto to consummate the Merger promptly upon the Closing Date, all conditions to the funding of the Financing set forth in the Commitment Letters and the Definitive Debt/Preferred Equity Financing Agreements that are within its control, (iii) using reasonable best efforts to consummate negotiate and enter into definitive debt or preferred financing agreements on the terms and conditions contemplated by the Debt Commitment Letter or the Preferred Equity Commitment Letter, as applicable (including any “flex” provisions) or such other terms and conditions that are more favorable to Parent and Merger Subsidiary (the “Definitive Debt/Preferred Equity Financing Agreements”), (iv) if the conditions under the Debt Commitment Letter or the Preferred Equity Commitment Letter, as applicable, are satisfied, consummating the applicable Debt/Preferred Equity Financing and causing the Debt/Preferred Equity Financing Sources to consummate their respective Financing at the Closing, (v) complying with its obligations under the Commitment Letters and Definitive Debt/Preferred Equity Financing Agreements in a timely and diligent manner, taking into consideration the timing of the Closing and the completion of the Marketing Period and (vi) keeping the Company informed on a regular and current basis and in reasonable detail of the status of its efforts to arrange the Financing contemplated by the Commitment Letters and any other financing (including, by, upon reasonable request of the Company, promptly providing to the Company drafts of material definitive agreements for the Financing (and any amendments thereto entered into on or prior to the Effective TimeClosing) and giving the Company prompt notice of (i) any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material and adverse impact on the Financing contemplated by the Commitment Letters, (ii) any breach by any party to the Commitment Letters or Definitive Debt/Preferred Equity Financing Agreements of which Parent has become aware, (iii) the expiration or termination (or attempted or purported termination, whether or not valid) of the Debt Commitment Letter or the Preferred Equity Commitment Letter, (iv) any written or electronic (including email) notice or communication by any Debt/Preferred Equity Financing Source with respect to any actual or threatened breach, default (or allegation thereof), repudiation by any party to any Commitment Letter or any Definitive Debt/Preferred Equity Financing Agreement or any refusal to provide, or stated intent that it will not provide, by any Debt/Preferred Equity Financing Source the full amount of the Debt/Preferred Equity Financing contemplated by the Debt Commitment Letter or the Preferred Equity Commitment Letter for any reason, (v) Parent’s good faith belief, for any reason, that it may no longer be able to obtain all or any portion of any Financing contemplated by the Commitment Letters on the terms and conditions described therein (after giving effect to any flex provisions), or (vi) receipt of any written notice or other written communication from any person with respect to any: (A) actual or potential breach, default, termination or repudiation by any party to the Debt Commitment Letter or any Definitive Debt/Preferred Equity Financing Agreement, (B) material dispute or disagreement between or among any parties to the Debt Commitment Letter or any Definitive Debt/Preferred Equity Financing Agreement (other than ordinary course negotiations) and (C) the failure of any condition to the Debt/Preferred Equity Financing to be satisfied. Any breach of the Commitment Letters, the Financing agreements, any Alternative Financing commitment or any Definitive Debt/Preferred Equity Financing Agreements by Parent or Merger Subsidiary shall be deemed a breach by Parent of this Section 7.05.
(b) Prior to the Closing, Parent shall give not, and shall cause its Affiliates not to, agree to or permit any termination, amendment, replacement, supplement or other modification of, or waive any of its rights under, the Company prompt notice Commitment Letters or Definitive Debt/Preferred Equity Financing Agreements without Parent’s prior written consent; provided that Parent may, without the Company’s prior written consent: (i) upon becoming aware enter into any amendment, replacement, supplement or other modification to or waiver of any breach of any material provision of any New Sponsor the Debt Commitment Letter, the Preferred Equity Commitment Letter or termination any Definitive Debt/Preferred Equity Financing Agreements that would not, and would not reasonably be expected to, (A) reduce the amount of the Debt/Preferred Equity Financing contemplated by the Debt Commitment Letter or the Preferred Equity Commitment Letter, to an amount that will be less than the Required Amount, (B) adversely affect the ability of Parent and Merger Subsidiary to enforce its rights against any New Sponsor other party to the Debt Commitment Letter or the Definitive Debt Financing Agreements, in each case, as so amended, replaced, supplemented or otherwise modified, in each case, in accordance with this Agreement, relative to the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter as in effect on the date hereof, (C) prevent, materially delay or impede the consummation of the Merger, the Debt/Preferred Equity Financing or the other transactions contemplated by this Agreement upon the satisfaction of the conditions set forth in the applicable Debt Commitment Letter or Preferred Equity Commitment Letter, or (D) impose any new or additional conditions, or otherwise expand any of the conditions, to the availability and funding of Debt/Preferred Equity Financing as contemplated by the Debt Commitment Letter or the Preferred Equity Commitment Letter, as applicable, and (ii) amend, replace, supplement or otherwise modify the Debt Commitment Letter or the Preferred Equity Commitment Letter by any party thereto to add lenders, lead arrangers, book runners, syndication agents, purchasers or (ii) upon similar entities that have not executed the receipt of any written notice from any party to a New Sponsor Debt Commitment Letter or Preferred Equity Commitment Letter with respect to as of the date of this Agreement. Upon any threatened breach of any material provision of such New Sponsor amendment, replacement, supplement, modification or waiver, the terms “Debt Commitment Letter”, “Preferred Commitment Letter”, “Definitive Debt/Preferred Equity Financing Agreement”, as applicable, shall mean the Debt Commitment Letter, Preferred Equity Commitment Letter or threatened termination Definitive Debt/Preferred Equity Financing Agreement, as applicable, as so amended, replaced, supplemented or modified. Parent shall promptly deliver to the Company copies of any such New Sponsor amendment, replacement, supplement or other modification of the Debt Commitment Letter or Preferred Equity Commitment Letter and/or any such waiver of a provision of the Debt Commitment Letter or Preferred Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each If all or any portion of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Debt Financing or Preferred Equity Financing, as applicable, becomes unavailable, or the Debt Commitment Letter or any debt financing or indebtedness of the Company in connection with the consummation Definitive Debt Financing Agreements shall be withdrawn, repudiated, terminated or rescinded, regardless of the Transactionsreason therefor, including then Parent shall (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to arrange and obtain, execute as promptly as practicable, from the same and/or alternative debt or preferred equity financing sources, as applicable, alternative financing in an amount, together with the amount of Financing remaining available and deliver such documents cash and cash equivalent on hand at the Company and its Subsidiaries, sufficient to pay the Required Amount on the Closing Date, in each case, upon terms and conditions not materially less favorable, taken as a whole, than those set forth in the Debt Commitment Letter or instruments the Preferred Equity Commitment Letter, as may be required applicable (including, for the Surviving Company’s due assumption ofavoidance of doubt, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including any related “market flex” provisions) (i“Alternative Financing”) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by promptly notify the 2022 Indenture Company of such unavailability and the reason therefor; provided that such reasonable best efforts shall not require Parent to pay more fees, OIDs or incur an increase in pricing than the Facility Agreement in connection with the consummation pricing terms of the TransactionsDebt Commitment Letter or Preferred Equity Commitment Letter, including as applicable, as in effect on the Merger.date of this Agreement, taking into account any flex terms. In the event any Alternative Financing is obtained in accordance with this Section 7.05(c), references in this Agreement to
Appears in 2 contracts
Sources: Merger Agreement (McAfee Corp.), Merger Agreement (McAfee Corp.)
Financing. (a) Subject Purchaser shall and shall cause its Affiliates to take, or cause to be taken, all actions, and to do, or cause to be done all things necessary, proper or advisable to consummate the Financing or any Substitute Financing (as defined below) as promptly as possible following the date hereof, including, (i) complying with and maintaining in effect the Commitment Letter, (ii) negotiating and entering into definitive agreements with respect to the Financing including the terms and conditions contained in the Commitment Letter so that such agreements are in effect no later than the Closing, (iii) satisfying as soon as possible and on a timely basis all the conditions to the Financing and the definitive agreements related thereto, (iv) accepting to the fullest extent all “market flex” contemplated by the Commitment Letter (or any fee letter relating thereto) and (v) enforcing its rights under the Commitment Letter in the event of a breach by the Financing Parties that could reasonably be expected to impede or delay Closing. In the event that all conditions to the Commitment Letter have been satisfied or, upon funding shall be satisfied, Purchaser and its Affiliates shall use their best efforts to cause the Financing Parties to fund on the Closing Date the Financing, to the extent the proceeds thereof are required to consummate the Merger and the other transactions contemplated hereby (including by taking enforcement action to cause the Financing Parties to fund such Financing). Purchaser shall, after obtaining Knowledge thereof, give Company prompt written notice of any (A) breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any breach or default) by a Financing Party or any party to any definitive document related to the Financing, (B) actual or threatened withdrawal, repudiation or termination of the Financing by the Financing Parties, (C) material dispute or disagreement between or among any parties to the Commitment Letter or any definitive document related to the Financing, (D) amendment or modification of, or waiver under, the Commitment Letter or any related fee letters or (E) change, circumstance or event which causes Purchaser or Merger Sub to believe that it will not be able to timely obtain all or any portion of the Financing on the terms, in the manner or from the Financing Parties or sources contemplated by the definitive documents related to the Financing. Purchaser shall keep Company informed on a reasonably current basis of the status of its efforts to arrange the Financing contemplated by the Commitment Letter, including providing copies of all definitive agreements related to the Financing. Other than as permitted pursuant to the immediately following sentence, neither Purchaser nor its Affiliates shall materially amend, modify, terminate, assign or agree to any waiver under the Commitment Letter or any related fee letters without the prior written approval of Company that would (I) reduce the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount) or (II) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the Financing, or otherwise expand, amend or modify any other provision of the Commitment Letter or the related fee letters in a manner that would reasonably be expected to (1) delay or prevent or make less likely the funding of the Financing (or satisfaction of the conditions to the Financing) on the Closing Date or (2) adversely impact the ability of Purchaser or Merger Sub, as applicable, to enforce its rights against the Financing Parties or any other parties to the Commitment Letter or the definitive agreements with respect thereto. Notwithstanding the foregoing, Purchaser shall be permitted to reduce the amount of Financing by an amount equal to the net cash proceeds received by Purchaser from any offering of (i) debt or equity securities issued by Purchaser or (ii) syndicated term loans of or guaranteed by Purchaser or any of its Subsidiaries, in each case, after the date hereof and prior to the Closing Date (provided that the funding of the Merger Consideration is described as a use of proceeds in any prospectus or term loan agreement, as applicable, related to such offering) (“Offering Proceed”), provided that Purchaser shall not reduce the Financing to an amount committed below the amount that is required, together with the financial resources of Purchaser and Merger Sub, including cash on hand and marketable securities of Purchaser, Company and their respective Subsidiaries that are committed to fund the Merger Consideration, to consummate the Merger and the transactions contemplated by this Agreement, and provided, further, that such reduction shall not (A) expand upon or amend in any way that is adverse to the Company the conditions precedent to the Financing as set forth in the Commitment Letter or (B) prevent or materially impede or materially delay the availability of the Financing and/or the consummation of the Merger and the transactions contemplated by this Agreement. In the event that new commitment letters are entered into in accordance with any amendment, replacement, supplement or other modification of the Commitment Letter permitted pursuant to this Section 5.14, such new commitment letters shall be deemed to be a part of the “Financing” and deemed to be the “Commitment Letter” for all purposes of this Agreement. Purchaser shall promptly deliver to Company copies of any termination, amendment, modification, waiver or replacement of the Commitment Letter or any fee letters. If funds in the amounts set forth in the Commitment Letter, or any portion thereof, become unavailable, or it becomes reasonably likely that such funds may become unavailable to Purchaser on the terms and conditions set forth therein, in each case, other than as a result of Parent receipt of Offering Proceeds, Purchaser shall, and shall cause its Affiliates, as promptly as practicable following the occurrence of such event to (x) notify Company in writing thereof, (y) obtain substitute financing (on terms and conditions that are not materially less favorable to Purchaser and Merger Sub shall use its reasonable best efforts Sub, taken as a whole, than the terms and conditions as set forth in the Commitment Letter, taking into account any “market flex” provisions thereof) sufficient to enable Purchaser to consummate the Equity Merger and the other transactions contemplated hereby in accordance with its terms (the “Substitute Financing”) and (z) obtain a new financing commitment letter that provides for such Substitute Financing at or prior and, promptly after execution thereof, deliver to Company true, complete and correct copies of the new commitment letter and the related fee letters (in redacted form reasonably satisfactory to the Effective TimePersons providing such Substitute Financing removing only the fee information, expense information and successful syndication information) and related definitive financing documents with respect to such Substitute Financing. Upon obtaining any commitment for any such Substitute Financing, such financing shall be deemed to be a part of the “Financing” and any commitment letter for such Substitute Financing shall be deemed the “Commitment Letter” for all purposes of this Agreement. Notwithstanding the foregoing, neither Purchaser nor any of its Affiliates shall enter into, or agree to enter into, any new commitments for any financing that would result in a reduction of the commitments set forth in the Commitment Letter unless the conditions precedent of such new commitments are not materially less favorable to Purchaser and its Affiliates than the conditions precedent set forth in the Commitment Letter as in effect on the date hereof.
(b) Parent shall give Notwithstanding anything contained in this Agreement to the Company prompt notice (i) contrary, Purchaser expressly acknowledges and agrees that Purchaser’s and Merger Sub’s obligations hereunder are not conditioned in any manner upon becoming aware of Purchaser or Merger Sub obtaining the Financing, any Substitute Financing or any other financing. Purchaser’s breach of any material provision of any New Sponsor Equity Commitment Letter its representations or termination of any New Sponsor Equity Commitment Letter by any party thereto warranties in Section 3.1(f), Purchaser’s or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened Merger Sub’s breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination their respective obligations in this Section 5.14, the failure, for any reason, of Purchaser and Merger Sub to have sufficient cash available on the Closing Date to pay the Merger Consideration in accordance with Article II hereof (and any such New Sponsor Equity Commitment Letterother amounts that may have to be paid pursuant to Section 1.11) and/or the failure to so pay the Merger Consideration on the Closing Date, in each case, shall constitute a willful and intentional breach of this Agreement by Purchaser and Merger Sub.
(c) Each party hereto For the period from the date hereof and the Closing, Company shall provide, provide and shall use its commercially reasonable efforts to cause each of its Subsidiaries Representatives, including legal, tax, regulatory and each of their respective Representatives accounting, to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company requested by Purchaser in connection with the consummation Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the TransactionsCompany and its Subsidiaries), including (i) as promptly as reasonably practicable providing information (financial or otherwise) relating to Company to the Persons providing the Financing (the “Financing Parties”) (including information to be used in the preparation of an information package regarding the business, operations, financial projections and prospects of Purchaser and Company obtaining approval customary or reasonably necessary for the completion of such Financing) to the extent reasonably requested by Purchaser to assist in preparation of customary offering or information documents to be used for the completion of the Financing, (ii) participating in a reasonable number of meetings (including customary one-on-one meetings with the lead arrangers for such Financing), presentations, road shows, drafting sessions, due diligence sessions (including accounting) and sessions with the rating agencies at times and at locations reasonably acceptable to Company, (iii) reasonably assisting in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents, which contain, to the extent reasonably available, all financial statements and other data required to be included therein, and all other data (including selected financial data) that the SEC would require in a registered offering or that would be necessary for an increase investment bank to receive customary “comfort” (including “negative assurance” comfort) from independent accountants in the size of the Company Board to such number as is requested in writing by Parent connection with a registered offering and (B) materials for rating agency presentations, (iv) reasonably cooperating with the election marketing efforts for the Financing, (v) providing customary authorization letters to the Financing Parties authorizing the distribution of information to prospective lenders and containing a representation to the Financing Parties that the public side versions of such documents, if any, do not include material non-public information about Company Board or their respective Affiliates or securities, (vi) providing audited financial statements of Company covering the three (3) fiscal years of Company ended at least seventy-five (75) days prior to the Closing Date, unaudited financial statements (excluding footnotes) for any fiscal quarter of Company ended after the date of the individuals who will serve as directors of most recent audited financial statements and at least forty-five (45) days prior to the Surviving CompanyClosing Date, in each case to the extent then available, and (vii) cooperating reasonably with Financing Parties’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of clauses Company; provided that until the Closing occurs, Company shall (A) and have no liability or any obligation under any agreement or document related to the Financing or (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) not be required to pay incur any commitment other liability in connection with the Financing unless simultaneously reimbursed or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent reasonably satisfactorily indemnified by Purchaser. Parent shall, promptly upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Timerequest by Company, Parent shall promptly reimburse the Company for any all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by it Company or any of its Subsidiaries in connection with the Company’s compliance cooperation of Company and its Subsidiaries contemplated by this Section 5.14 (without duplication of any reimbursement pursuant to the preceding sentence). Parent and Merger Sub shall, on a joint and several basis, indemnify and hold harmless Company and its Subsidiaries and their respective representatives from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments and penalties suffered or incurred in connection with Section 6.07(c)(i) through (iii)any Financing or other securities offering of Parent and/or its Subsidiaries or any assistance or activities provided in connection therewith.
(d) The Company Purchaser shall use reasonable best efforts pay, or cause to obtainbe paid, execute as the same shall become due and deliver such documents payable, all fees and other amounts that become due and payable prior to the Closing Date under the Commitment Letter or instruments the related fee letters, including without limitation the fees described in the fee letter dated July 9, 2012 among Credit Suisse AG, Credit Suisse Securities (USA) LLC and Purchaser.
(e) Purchaser shall not permit the borrowing availability under that certain credit agreement, dated as may be required for the Surviving Company’s due assumption ofof September 30, 2010, among Purchaser, Bank of America N.A. and succession tocertain other parties thereto (as amended, restated, supplemented, extended or replaced from time to time, the Company’s obligations under “Existing Credit Agreement”) to be less than $1,300,000,000 at any time prior to the 2022 Indenture Closing. Purchaser shall take all actions reasonably necessary to ensure that the Existing Credit Agreement remains in full force and effect and shall not enter into or permit any amendments, waivers or other modifications to the Facility Agreement, including Existing Credit Agreement that would reasonably be likely to (i) customary closing certificates and other similar documents as may cause the revolving loans under the Existing Credit Agreement to be reasonably requested unavailable to Purchaser on the Closing Date or (ii) result in the borrowing availability under the Existing Credit Agreement being less than $1,300,000,000 at any time on or prior to the Closing Date; provided that, notwithstanding the foregoing, Purchaser shall be permitted to reduce such borrowing availability by an amount equal to any Offering Proceeds received by Purchaser in excess of those required to reduce the trustee amount of the 2022 Notes or as may be required under Financing commitments to zero, provided that Purchaser shall not reduce such borrowing availability to an amount below the Facility Agreement in connection amount that is required, together with the consummation financial resources of the TransactionsPurchaser and Merger Sub, including cash on hand and marketable securities of Purchaser, Company and their respective Subsidiaries that are committed to fund the Merger Consideration, to consummate the Merger and (ii) customary legal opinions as are required the transactions contemplated by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Mergerthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Wellpoint, Inc), Merger Agreement (Amerigroup Corp)
Financing. (a) Subject to the terms and conditions of this Agreement, each Each of Parent and Merger Sub shall use its reasonable best efforts to consummate take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable to arrange, and close concurrently with the Equity Closing, debt financing on terms and conditions described in the Debt Commitment Letters and/or any Alternative Financing at or prior (as defined below) (including obtaining rating agency approvals, maintaining in effect the Debt Commitment Letters, satisfying on a timely basis all conditions applicable to Parent and Merger Sub to obtaining the financing contemplated by the Debt Commitment Letters, negotiating and entering into definitive agreements with respect to the Effective Time.
(b) Debt Commitment Letters on terms and conditions contained therein or with respect to any Alternative Financing, satisfying all conditions applicable to Parent and Merger Sub in such definitive agreements that are within their respective control and, if necessary, borrowing pursuant to the Debt Commitment Letters in the event any “flex” provisions are exercised). Parent shall keep the Company Board informed on a reasonably current basis in reasonable detail of the status of its efforts to comply with the terms of, and satisfy the conditions contemplated by, the Debt Commitment Letters in accordance with this Section 6.12 and shall not, and shall not permit Merger Sub to, agree or permit any amendment, supplement or other modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letters without obtaining the prior written consent of the Company Board if such amendment, supplement or other modification could reasonably be expected to impair, delay or prevent consummation of the Debt Financing. Parent shall give the Company Board prompt notice (i) upon becoming aware of any breach of any material provision of breach by any New Sponsor Equity party to the Debt Commitment Letter or Letters, any termination of any New Sponsor Equity of the Debt Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing Letters or any debt financing other circumstance, event or indebtedness of the Company in connection with condition that would reasonably be likely to prevent, delay or impede the consummation of the Transactionsfinancing contemplated by the Debt Commitment Letters, to the extent it becomes aware of such breach, termination, circumstance, event or condition. Parent shall not, and shall not permit any of its Affiliates to, without the prior written consent of the Company, take or fail to take any action or enter into any transaction, including (i) the Company obtaining approval of (A) an increase any merger, acquisition, joint venture, disposition, contract or debt or equity financing, that could reasonably be expected to materially breach or make materially untrue any representation or warranty contained in the size Debt Commitment Letters or otherwise impair, delay or prevent consummation of the Company Board to such number as is requested in writing by Parent and Debt Financing (B) or, if applicable, of any Alternative Financing). In the election to the Company Board event that all or any portion of the individuals who will serve as directors of financing contemplated by the Surviving CompanyDebt Commitment Letters becomes unavailable on the terms and conditions set forth in the Debt Commitment Letters, Parent shall use its reasonable best efforts to arrange, or if Parent is able to arrange debt financing in amounts sufficient to fund the transactions contemplated hereby on terms and conditions more favorable to Parent than those contained in the Debt Commitment Letters, Parent may arrange, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to promptly as practicable following the occurrence of the Effective Time, Parent shall promptly reimburse such event and after giving the Company for any reasonable prior written notice, alternative financing from alternative sources in an amount sufficient to consummate the transactions contemplated by this Agreement on terms that are no less beneficial to Parent or Merger Sub (including with respect to conditionality) and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts on terms that would not reasonably be expected to obtainprevent, execute and deliver such documents delay or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with impede the consummation of any remaining financing contemplated by the TransactionsDebt Commitment Letters or the transactions contemplated by this Agreement (the “Alternative Financing”). For the avoidance of doubt, including if the financing provided for by the Debt Commitment Letters has not been or cannot be obtained, Parent and Merger Sub shall continue to be obligated to consummate the Merger on the terms contemplated by this Agreement and (ii) customary legal opinions as are required by subject only to the 2022 Indenture satisfaction or the Facility Agreement in connection with the consummation waiver of the Transactionsconditions set forth in Sections 7.1 and 7.2 of this Agreement (other than those conditions that by their nature will not be satisfied until the Closing) and to Parent’s rights under Section 8.1, regardless of whether Parent and Merger Sub have complied with all of their other obligations under this Agreement (including the Mergertheir obligations under this Section 6.12).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (LKQ Corp), Merger Agreement (Keystone Automotive Industries Inc)
Financing. (a) Subject to the terms The Debtor shall, and conditions of this Agreementshall cause its Subsidiaries to, each of Parent and Merger Sub shall use its reasonable best efforts to consummate the Equity Financing at or prior to the Effective Time.
(b) Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, provide and shall cause each of direct its Subsidiaries and each of their respective Representatives to provide, use their respective reasonable best efforts to provide all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company requested by Parent in connection with the arrangement, syndication and consummation of any debt financing by Parent or its Subsidiaries and the TransactionsDebtor or any of its Subsidiaries, any equity financing of Parent or any minority investment in the Debtor or any of its Subsidiaries (not to exceed ten percent (10%) of the fully-diluted equity of the Debtor or such Subsidiary) including (i) the Company obtaining approval of (A) an increase in the size refinancing of the Company Board to indebtedness under the Centerbridge Facility, whether at the Debtor, Parent or any of their Subsidiaries (such number as is requested in writing by Parent and (B) financing, the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B“Manorcare Financing”), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts refinancing of the indebtedness under the First Lien Credit and Guaranty Agreement, dated as of October 31, 2016, by and among QCP SNF West REIT, LLC, QCP SNF Central REIT, LLC, QCP SNF East REIT, LLC, QCP AL REIT, LLC, QCP Holdco REIT, LLC, Parent, certain Subsidiaries of Parent from time to ensure that time party to the Parent credit agreement as guarantors, the lenders party thereto and Barclays Bank PLC, as Administrative Agent and Swing Line Lender, and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor L/C Issuers at Parent or any of its Subsidiaries and (iii) the refinancing of the $750 million senior secured notes due 2023 issued pursuant to that certain Indenture, dated as of October 17, 2016, among QCP SNF West REIT, LLC, QCP SNF Central REIT, LLC, QCP SNF East REIT, LLC and QCP AL REIT, LLC, as issuers, and Wilmington Trust, National Association, as trustee and notes collateral agent (such financing, together with the Manorcare Financing, the “Financing”). Such cooperation shall include (xi) be required furnishing Parent and its Debt Financing Sources with the Audited Financial Statements and with audited financial statements for the Debtor and its Subsidiaries for each subsequent fiscal year within fifty (50) days after the end of such fiscal year, and quarterly and interim unaudited financial statements for the Debtor and its Subsidiaries for the fiscal quarters and interim periods ended March 31, 2018, June 30, 2018 and September 30, 2018 and for each subsequent fiscal quarter within thirty-five (35) days after the end of such fiscal quarter, in each case, with comparative financial information for the equivalent period of the prior year; (ii) using reasonable best efforts to pay furnish Parent and its Debt Financing Sources with information, audit reports, historical business and other financial data and any commitment or similar fee prior supplements thereto regarding the Debtor and its Subsidiaries customarily included in information memoranda and other syndication materials for revolving, term loan credit facilities, bond offering documents and equity offering documents, including assisting in preparing pro forma financial information for the Debtor and its Subsidiaries; (iii) to the Effective Time extent reasonably requested by Parent, using reasonable best efforts to prepare carve-out audited and unaudited financial statements for the time period required or desirable to any Debt Financing Source; (yiv) be required using reasonable best efforts to commit cause members of management and other senior officers to taking any action that is not contingent upon the Closing participate in a reasonable number of meetings (including entry into one-on-one meetings or conference calls), lender presentations, due diligence sessions and sessions with rating agencies, prospective lenders and investors and other syndication and marketing activities; (v) reasonably assisting Parent and its Debt Financing Sources in the preparation of any agreementsyndication and offering documents and materials, including information memoranda, lender presentations, offering memoranda, registration statements, prospectuses and other marketing documents (collectively, the “Marketing Documentation”) or would be effective prior to and provide and execute a customary authorization letter with respect thereto; (vi) reasonably cooperating in marketing efforts of Parent; (vii) reasonably assisting in the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence negotiation and preparation of any credit agreements, indentures, underwriting agreements, purchase agreements, pledge and security documents, mortgages, guarantees, hedging agreements and other definitive documents, a certificate of the Effective Timechief financial officer of the Debtor with respect to solvency matters in a form acceptable to Parent and any other certificates, Parent shall promptly reimburse the Company for letters and documents (including any reasonable schedules and documented out-of-pocket costs incurred by it exhibits in connection with the Company’s compliance with Section 6.07(c)(iforegoing) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by Parent; (viii) reasonably assisting in the trustee obtaining of (A) audit reports, authorization letters, comfort letters and consents of accountants and auditors with respect to financial statements for the 2022 Notes or as Debtor and its Subsidiaries for inclusion in any Marketing Documentation and (B) payoff letters, instruments of discharge and Lien terminations; (ix) providing information regarding the Debtor and its Subsidiaries required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act of 2001, to the extent requested by its Debt Financing Sources at least eight (8) business days prior to the Closing; (x) reasonably assisting Parent in obtaining corporate, facility and debt security ratings from rating agencies; (xi) reasonably cooperating with Parent’s legal counsel (including providing customary back-up certificates) in connection with any legal opinions that such legal counsel may be required under the Facility Agreement to deliver in connection with the consummation Financing; (xii) taking such reasonable actions as may be reasonably requested by Parent necessary to permit its Debt Financing Sources to evaluate the Debtor’s assets and cash management policies and procedures relating thereto for the purposes of establishing collateral arrangements as of the TransactionsClosing and to cooperate with other due diligence conducted by its Debt Financing Sources; (xiii) using reasonable best efforts to obtain customary evidence of authority, including customary officer’s certificates, good standing certificates (to the Merger extent applicable) in the respective jurisdictions of organization of the Debtor and its Subsidiaries, customary lien searches with respect to the Debtor and its Subsidiaries and insurance certificates; (xiv) using reasonable best efforts to facilitate the granting of a security interest (or perfection thereof) in collateral by the Debtor and its Subsidiaries to secure the Financing at Closing; and (iixv) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement if applicable, reasonably cooperating with Parent in connection with the consummation payoff of the TransactionsCenterbridge Facility at Closing.
(b) The Debtor hereby consents to the use of its and its Subsidiaries’ logos in connection with the Financing; provided that such logos are used solely in a manner that is not intended to, including nor reasonably likely to, harm or disparage the MergerDebtor or its Subsidiaries.
(c) For purposes of this Agreement, “Debt Financing Sources” means the Persons that will provide or otherwise enter into agreements in connection with the Financing, together with, in each case, their Affiliates and Representatives.
Appears in 2 contracts
Sources: Plan Sponsor Agreement, Plan Sponsor Agreement (Quality Care Properties, Inc.)
Financing. (a) Subject Immediately following the date hereof, TopCo Parent shall use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to obtain the terms Pre-Emptive Rights Waiver as soon as practicable following the date hereof (and conditions in any event within thirty (30) Business Days of this Agreementthe date hereof).
(b) TopCo Parent, each of Parent and Merger Sub shall use its their commercially reasonable best efforts to consummate take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Equity Financing at contemplated by the Financing Letters on or prior to the Effective Time.
Closing Date on the terms and conditions described in the Financing Letters, including to: (bi) maintain in effect and comply with the Financing Letters and any Definitive Financing Agreements in accordance with their terms until the funding of the Financing to TopCo Parent or one or more of its Affiliates that are within its control on the Closing Date; (ii) satisfy on a timely basis all conditions to the funding of the Financing set forth in the Financing Letters and the Definitive Financing Agreements applicable to TopCo Parent or one or more of its Affiliates that are within its control; (iii) negotiate and enter into additional definitive debt financing agreements to the extent necessary (including the entrance into amended and/or restated versions of already existing definitive debt facility agreements) on the terms and conditions contemplated by the Debt Letters (the “Definitive Debt Financing Agreements”) and definitive equity financing agreements on the terms and conditions contemplated by the Equity Letters (the “Definitive Equity Financing Agreements” and together with the Definitive Debt Financing Agreements, the “Definitive Financing Agreements”); and (iv) subject to the satisfaction or waiver of the Financing Conditions, cause the Financing Sources to consummate the Financing, and fund the amounts thereunder on the Closing Date. TopCo Parent shall keep the Company reasonably informed on a current basis and in reasonable detail of the status of its efforts to arrange the Financing and to satisfy the conditions thereof. TopCo Parent will promptly provide to the Company copies of all Definitive Financing Agreements. TopCo Parent shall give the Company prompt written notice (i) upon becoming aware after the occurrence of any breach of the following: (A) any material provision of any New Sponsor Equity Commitment Letter breach or termination of any New Sponsor Equity Commitment Letter material default by any party thereto to the Financing Letters or definitive agreements related to the Financing of which TopCo Parent becomes aware; (iiB) upon the receipt by TopCo Parent, Parent or Merger Sub of any written notice or written communication from any Financing Source with respect to any actual or potential breach, default, termination or repudiation by any party to a New Sponsor Equity Commitment Financing Letter or any definitive agreements related to the Financing or of any provisions of any Financing Letter or such definitive agreements; (C) any material dispute or disagreement between or among any parties to any of the Financing Letters or any Definitive Financing Agreement with respect to the conditionality or amount of the Financing or the obligation to fund the Financing or the amount of the Financing to be funded at the Closing (but excluding ordinary course negotiations); (D) if for any threatened breach reason, TopCo Parent, Parent or Merger Sub at any time believes it will not be able to obtain all or any portion of the Financing in an amount sufficient to consummate the Offer, the Merger and the other Contemplated Transactions; and (E) any material provision fact, change, event or circumstance that could reasonably be expected to prevent or materially delay or impede the consummation of such New Sponsor the Offer, the Merger or the Financing contemplated by the Financing Letters. In the event that all conditions contained in the Financing Letters (other than, with respect to the Debt Financing, the availability of the Equity Commitment Letter or threatened termination Financing) have been satisfied and Parent is required to consummate the Closing pursuant to Section 2.04, TopCo Parent shall use its commercially reasonable efforts to cause each Financing Source to fund its respective portion of any such New Sponsor Equity Commitment Letterthe Financing required to consummate the transactions contemplated by this Agreement and to pay related fees and expenses on the Closing Date.
(c) Each party hereto Prior to the Closing, TopCo Parent, Parent and Merger Sub shall providenot, and Parent shall cause each not permit Merger Sub to, agree to or permit any termination, amendment, replacement, supplement or other modification of, or waive any of its Subsidiaries rights, provisions or remedies under, the Financing Letters or Definitive Financing Agreements without the Company’s prior written consent which consent shall not be unreasonably withheld; provided, that TopCo Parent, Parent and each Merger Sub may, without the Company’s prior written consent, (i) enter into any amendment, replacement, supplement or other modification to or waiver of any provision of the Debt Letters or Definitive Debt Financing Agreements that would not, and would not reasonably be expected to, reduce the aggregate amount of the Debt Financing below an amount, together with the Equity Financing, and any available cash of TopCo Parent, the Company and their respective Representatives Subsidiaries, required to providepay the Merger Amounts, all cooperation or prevent, materially delay or impede the consummation of the Offer, the Merger or the Debt Financing contemplated by the Debt Letters; and (ii) amend, replace, supplement or otherwise modify the Debt Letters to add lenders, lead arrangers, book runners, syndication agents or similar entities that had not executed the Debt Letters as may of the date hereof so long as any such addition would not reasonably be reasonably required expected to prevent, materially delay or impede the consummation of the Offer, the Merger or the Debt Financing contemplated by the Debt Letters, but only, with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including foregoing clauses (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies ), to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall doing so would not (x) be required to pay impose new or additional conditions or expand, amend or modify any commitment or similar fee prior existing condition to the Effective Time receipt and availability of the Debt Financing in a manner that would reasonably be expected to prevent or materially delay or impede the ability of Parent to consummate the Closing or (y) be required adversely impact the ability of TopCo Parent, Parent or Merger Sub, as applicable, to commit to taking enforce its rights against the Debt Financing Sources under the Debt Letters. Upon any action that is not contingent upon such amendment, replacement, supplement or modification, the Closing (including entry into any agreement) term “Debt Letters” and “Definitive Debt Financing Agreements” shall mean the Debt Letters or would be effective prior to the Effective TimeDefinitive Debt Financing Agreements, as applicable, as so amended, replaced, supplemented or modified. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, TopCo Parent shall promptly reimburse deliver to the Company for copies of any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtainsuch amendment, execute and deliver such documents replacement, supplement or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee modification of the 2022 Notes Debt Letters or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the MergerDefinitive Debt Financing Agreements.
Appears in 2 contracts
Sources: Merger Agreement (Ig Design Group Americas, Inc.), Merger Agreement (CSS Industries Inc)
Financing. (a) Subject Prior to the terms Closing, the Company shall, and conditions of this Agreementshall cause the Company Subsidiaries to, each of Parent and Merger Sub shall use its reasonable best efforts to consummate the Equity Financing at or prior provide to the Effective Time.
(b) Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter Contributor, Raptor and their respective Subsidiaries such cooperation reasonably requested by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provideContributor, Raptor and their respective Subsidiaries, and shall cause each of its Subsidiaries and each of their respective Representatives to providewhich is customarily provided by similarly situated Persons engaging in similar transactions, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation Company, the Company Subsidiaries or its or their respective assets pursuing any proposed financing, including any expansion of any existing arrangements relating to Indebtedness for Borrowed Money of the TransactionsContributor, including (i) to reflect the consolidation of the assets of the Company obtaining approval with those of the Contributed Entities, including: (a) using reasonable best efforts to cooperate with marketing efforts and assist with the preparation of materials for rating agency presentations and bank books, offering memoranda or other marketing documents, customarily reviewed or reasonably requested by such rating agencies and banks; (b) upon reasonable prior written notice, participating at reasonable times (and during regular business hours) in a reasonable number of meetings, presentations and rating agency and due diligence sessions; and (c) reasonably assisting with the preparation of any credit agreement, reasonable pledge and security documents, currency or interest hedging arrangements, other definitive financing documents, or other certificates or documents; provided, that (A) an increase nothing in this Section 5.24 shall require the size Company to (I) take any action that would reasonably be expected to conflict with or violate any of the Company’s Organizational Documents or any Law or (II) pay any fees, reimburse any expenses or give any indemnities prior to the Closing, (B) nothing in this Section 5.24 shall require such cooperation to the extent it would unreasonably interfere with the ongoing business or operations of the Company, (C) no obligation of the Company Board to such number as is requested or any Company Subsidiary under any document or agreement executed by the Company or any Company Subsidiary in writing by Parent connection with this Section 5.24 shall be effective until the Closing and (BD) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent Contributor shall promptly upon receipt of a reasonably detailed invoice therefor, reimburse the Company for any reasonable and documented out-of-pocket expenses and costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The obligations of the Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Company Subsidiaries under this Section 5.24; provided, further, that, except as expressly set forth in this Agreement, including nothing in this Agreement shall require the Company or the Company Subsidiaries to cause the delivery of (ix) customary closing certificates and other similar documents as may be reasonably requested legal opinions or reliance letters, (y) any financial information in a form not customarily prepared by the trustee Company with respect to such period or (z) any financial information with respect to a fiscal period that has not yet ended or has ended less than forty-five (45) days prior to the date of such request (or, in the 2022 Notes or as may be required under case of annual financial statements, ninety (90) days prior to such request). For the Facility Agreement in connection with the consummation avoidance of the Transactionsdoubt, including the Merger each Party acknowledges and (ii) customary legal opinions as are required agrees that obtaining any proposed financing contemplated by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Mergerthis Section 5.24 is not a condition to Closing and shall not delay Closing.
Appears in 2 contracts
Sources: Contribution Agreement (Blackstone Holdings III L.P.), Contribution Agreement (Altus Midstream Co)
Financing. (a) (i) Subject to the terms and conditions other provisions of this Agreement, each of Parent and Merger Sub Amneal shall use its reasonable best efforts to consummate the Equity Financing at or prior to the Effective Time.
(b) Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to cause its Affiliates and Subsidiaries) to take, or cause to be taken, all actions necessary or advisable to obtain, execute or cause to be obtained, the Debt Financing on the terms and deliver conditions, described in the Debt Commitment Letter (including as such documents or instruments as terms may be required for modified or adjusted in accordance with the Surviving Companyterms of the “flex” provisions contained in the Fee Letter), including using reasonable best efforts to (A) maintain in effect the Debt Commitment Letter until the funding of the Debt Financing at or prior to Closing, (B) negotiate definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) consistent in all material respects with the terms and conditions contained in the Debt Commitment Letter (including any related “flex” provisions) or on other terms not less favorable, in the aggregate, to Amneal than the terms and conditions (including the “flex” provisions) contemplated by the Debt Commitment Letter but only to the extent that any such other terms would not reasonably be expected to adversely impact or delay in any material respect the ability of Amneal to consummate the Transactions and the Ancillary Transactions in accordance with this Agreement or obtain the Debt Financing (it being agreed that, notwithstanding the foregoing, Amneal may modify, supplement, amend or amend and restate the Debt Commitment Letter solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities (and make incidental or conforming amendments or modifications to reflect the addition of any such lenders, lead arrangers, bookrunners, syndication agents and similar entities), (C) satisfy (or obtain a waiver of) all conditions within its control to obtaining the Debt Financing and (D) upon satisfaction of all of the conditions in this Agreement to Amneal’s due assumption ofand Impax’s obligations to effect the Closing, and succession tosatisfaction of all of the conditions set forth in the Debt Commitment Letter, enforcing its rights against the Company’s obligations under other parties to the 2022 Indenture and the Facility AgreementDebt Commitment Letter, if any, including (i) customary closing certificates and other similar documents as may be reasonably requested by to require such parties to provide the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the MergerDebt Financing.
Appears in 2 contracts
Sources: Business Combination Agreement (Atlas Holdings, Inc.), Business Combination Agreement (Impax Laboratories Inc)
Financing. (a) Subject Prior to the terms and conditions of this AgreementClosing, each of Parent and Merger Sub the Sellers shall use its reasonable best efforts to, and cause the Transferred Subsidiaries and the other Indirect Subsidiaries and their respective directors, officers, employees, advisors and representatives to, provide to consummate the Equity Buyers, at the Buyers’ sole expense, all reasonable cooperation requested by the Buyers that is customary in connection with obtaining the Debt Financing, including, but not limited to, (i) furnishing to the Buyers and the Debt Financing Sources, as promptly as reasonably practicable, such customary financial and other information as the Buyers shall reasonably request in order to obtain the Debt Financing (ii) at or least five (5) Business Days prior to the Effective Time.
(b) Parent shall give Closing Date, providing all documentation and other customary information about the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter Transferred Subsidiaries and the Indirect Subsidiaries as is reasonably requested by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter Debt Financing Sources with respect to any threatened breach applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act (iii) facilitating the granting of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, liens and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation pledging collateral as may be reasonably required with respect to requested by the Equity Financing Buyers, provided that no guarantee, security interest or any debt financing pledge shall be executed, delivered or indebtedness be effective until the occurrence of the Company in connection Closing and subject to compliance with the consummation of the Transactions, applicable laws (including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (Blaws on financial assistance), effective as (iv) permitting the Debt Financing Sources to evaluate and appraise the Transferred Subsidiaries’ and the Indirect Subsidiaries’ current assets and liabilities, cash management and accounting systems, policies and procedures relating thereto for the purpose of immediately prior to establishing collateral and/or security arrangements after the Effective TimeClosing, and (iiv) obtaining such payoff letters and collateral lien and/or security releases as are required by the Company using commercially reasonable efforts Debt Financing Sources (and provided that drafts of such payoff letters and collateral and/or security releases are provided in accordance with Section 7.4(g)); provided, however, that notwithstanding anything in this Agreement to ensure that the Parent and the Surviving Company benefit from the existing lending relationships contrary, none of the Group Companies to Sellers, the extent requested by Parent. Neither Transferred Subsidiaries or the Company nor any of its Indirect Subsidiaries shall (xA) be required to pay any commitment or other similar fee or consent fee (other than the Transferred Subsidiaries and Indirect Subsidiaries after Closing), (B) have prior to the Effective Time Closing any liability or obligation under the Debt Commitment Letters, any loan agreement or certifications or any related document or any other agreement or document related to the Debt Financing, (C) be required to incur prior to the Closing any other liability in connection with the Debt Financing, (D) take any action that would (x) unreasonably interfere with its ongoing business operations or (y) conflict with or violate laws, or result in a contravention of, or that would reasonably be expected to result in a violation or breach of, or default under, any material contract to which it is a party, (E) be required to commit agree to taking provide any action that is not contingent upon inducement or business to any of the Debt Financing Sources or (F) except only as will be executed, delivered and effective at the Closing (and subject to compliance with applicable laws (including entry into laws on financial assistance), take any agreement) corporate action or would be effective prior to execute any consent approving, or executing any document or agreement relating to, the Effective TimeDebt Financing. If this Agreement is terminated in accordance with its terms prior to The Buyers shall indemnify and hold harmless Sellers, the occurrence of Transferred Subsidiaries and the Effective Time, Parent shall promptly reimburse the Company Indirect Subsidiaries for any reasonable and documented out-of-pocket all losses, costs and expenses actually suffered or incurred by it them in connection with the Company’s compliance with arrangement of the Buyer Financing or any action taken by them at the request of the Buyers pursuant to this Section 6.07(c)(i) through (iii)6.13.
(db) The Company Buyers shall use their reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates satisfy on a timely basis all conditions to funding set forth in such Debt Commitment Letters and other similar documents as may be reasonably requested by the trustee conditions set forth for utilisation of the 2022 Notes facilities described in the Debt Commitment Letters, (ii) obtain, at or as may be required prior to the Closing Date, the financing necessary such that the Buyers will have at and after the Closing funds sufficient to pay the Required Amount, and (iii) comply with the Buyers’ obligations with respect to the conditions to the receipt of such Debt Financing under the Facility Agreement Debt Commitment Letters. The Buyers shall give the Sellers prompt notice of any material breach by any party to the Debt Commitment Letters, of which the Buyers becomes aware, or any termination of the Commitment Letters.
(c) The Buyers shall not amend, modify, alter, waive, replace or agree to amend, modify, alter, waive or replace (in any case whether by action or inaction), any term of the Commitment Letters or any facility documents entered into under or in connection with the consummation Debt Commitment Letters (the “Facility Documents”), if such amendment, modification, waiver or replacement (x) reduces the aggregate amount of the TransactionsBuyer Financing (including by increasing the amount of fees to be paid or original issue discount of the Debt Financing unless the Equity Financing is increased by a corresponding amount) beyond the amount necessary for the Buyers to sufficiently pay the Required Amount, including or (y) imposes new or additional conditions or otherwise expands, amends or modifies any of the Merger and conditions to the receipt of the Buyer Financing in a manner that would reasonably be expected to (iiI) customary legal opinions as are required by the 2022 Indenture delay or the Facility Agreement in connection with prevent the consummation of the Transactionstransactions contemplated hereby when required pursuant to Section 2.2, (II) make the funding of the Buyer Financing (or satisfaction of the conditions to obtaining the Buyer Financing) less likely to occur or (III) adversely impact the ability of the Buyers to enforce their rights against other parties to the Commitment Letters or any other definitive agreements with respect thereto, and shall use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange the Buyer Financing on the terms and conditions described in the Commitment Letters and the Facility Documents, including using its reasonable best efforts to (i) maintain in effect the MergerCommitment Letters and the Facility Documents, (ii) satisfy on a timely basis all conditions applicable to the Buyers to obtaining the Debt Financing at the Closing set forth therein that are within its control; and (iii) upon satisfaction of the conditions set forth in the Commitment Letters and the Facility Documents, consummate the Buyer Financing at or prior to the Closing. In the event any portion of the Buyer Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letters and the Facility Documents, the Buyers shall promptly notify the Sellers of such unavailability and the reasons therefor (and in any event within one (1) Business Day thereof), and shall use their reasonable best efforts to arrange to obtain alternative financing as promptly as practicable from alternative sources on which do not contain any conditions to the receipt of such Buyer Financing which are materially less favorable, in the aggregate, to the Buyers and in an amount sufficient to consummate the transactions contemplated hereby promptly following the occurrence of such event (the “Alternative Financing”). The Buyers shall deliver to the Sellers copies of all agreements evidencing the Alternative Financing. The Buyers shall give the Sellers prompt written notice of (x) any material breach by any party to the Commitment Letters and the Facility Documents of which the Buyers becomes aware or any termination of the Commitment Letters and the Facility Documents, or (y) any material dispute or disagreement between or among the Buyers, on the one hand, and the Debt Financing Sources on the other hand, or, to the knowledge of the Buyers, among any of the Debt Financing Sources with respect to their obligations to fund the Required Amount. If at any time for any reason the Buyers believe in good faith that they will not be able to obtain all or any portion of the Buyer Financing on the terms and conditions, in the manner or from the sources contemplated by the Commitment Letters and the Facility Documents or any other definitive agreements related thereto, the Buyers shall deliver prompt written notice to the Sellers. The Buyers shall keep the Sellers informed on a reasonably current basis in reasonable detail of the status of its efforts to obtain the Debt Financing and provide to the Sellers copies of all related documents. In no event shall the unavailability of any funds or financing (including, for the avoidance of doubt, the Buyer Financing) by or to the Buyers excuse the Buyers from performance of any of their respective obligations hereunder.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Mallinckrodt PLC)
Financing. (a) Subject Each of Parent and Merger Sub shall, and shall cause their respective Subsidiaries to, use reasonable best efforts to take, or shall use reasonable best efforts to cause to be taken, all actions and to do, or cause to be done, all things necessary to obtain the Debt Financing including (i) using reasonable best efforts to (A) maintain in effect the Debt Commitment Letter and in all material respects comply with all of their respective obligations thereunder and (B) negotiate, enter into and deliver the definitive agreements with respect thereto on the terms and conditions not less favorable in the aggregate, to Parent than those contained in the Debt Commitment Letter (including, as necessary, the “market flex” provisions contained in any related fee letter) by the Closing Date, and (ii) using reasonable best efforts to satisfy (or if determined advisable by Parent, obtain the waiver of) on a timely basis all conditions to obtaining the Debt Financing within Parent’s (or its Subsidiary’s) control and to comply with all of its obligations pursuant to the Debt Commitment Letters or other definitive agreements related thereto to the extent the failure to comply with such obligations would adversely impact the timing of the Closing or the availability at the Closing of sufficient aggregate proceeds of the Debt Financing to consummate the transactions contemplated by this Agreement. In the event that all conditions to funding the commitments contained in the Debt Commitment Letters have been satisfied, each of Parent and Merger Sub shall, and shall cause their respective Subsidiaries to, use reasonable best efforts to cause the Financing Sources to fund the Debt Financing required to consummate the transactions contemplated by this Agreement and to pay related fees and expenses on the Closing Date. Parent shall use its reasonable best efforts to consummate enforce all of its rights under the Equity Financing at Debt Commitment Letters. Parent and/or Merger Sub shall pay, or prior cause to be paid, as the Effective Timesame shall become due and payable, all fees and other amounts under the Debt Commitment Letters.
(b) In the event that any portion of the Debt Financing becomes unavailable and such portion is necessary to consummate the transactions contemplated by this Agreement (except in accordance with the express terms set forth in the Debt Commitment Letters, including as a result of the entry into definitive agreements for a “Qualifying Term Loan Facility” under the applicable Debt Commitment Letters with commitments subject to substantially the same conditions as those set forth in the applicable Debt Commitment Letters or unless concurrently replaced on a dollar-for-dollar basis by commitments subject to substantially the same conditions as those set forth in the applicable Debt Commitment Letters from other Financing Sources or from proceeds of other sources of financing or cash), Parent and Merger Sub shall (i) use their reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, alternative debt financing for any such portion from alternative debt sources on terms and conditions, taken as a whole, no less favorable to Parent and Merger Sub than the terms and conditions set forth in the Debt Commitment Letter (taking into account any “market flex” provisions thereof) and in an amount that will still enable Parent and Merger Sub to consummate the transactions contemplated by this Agreement (“Alternative Financing”), and (ii) promptly notify the Company of such unavailability and the reason therefor. If obtained, Parent shall deliver to the Company true and complete copies of all commitment letters and other definitive agreements (including redacted copies of fee letters, removing only fee amounts, the rates and amounts included in the “market flex” provisions and certain other economic terms (none of which could adversely affect the amounts, availability, timing or conditionality of the Debt Financing)) pursuant to which any such alternative source shall have committed to provide Parent or the Surviving Corporation with Alternative Financing.
(c) Parent and Merger Sub shall not, without the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed), permit any amendment, modification to, or any waiver of any provision or remedy under, any Debt Commitment Letter or any definitive agreement related thereto unless the terms of such Debt Commitment Letter or definitive agreement related thereto, in each case as so amended, modified or waived, are substantially similar to those in such Debt Commitment Letter or definitive agreement related thereto, prior to giving effect to such amendment, modification or waiver (other than economic terms, which shall be as good as or better for Parent and Merger Sub than those in such Debt Commitment Letter or definitive agreement relating thereto prior to giving effect to such amendment, modification or waiver); provided that in the case of amendments or modifications or waivers of any Debt Commitment Letter or any definitive agreement relating thereto, such amendment, modification or waiver would not reasonably be expected to (i) (A) add additional conditions precedent that would adversely affect the ability or likelihood of Parent or Merger Sub timely consummating the transactions contemplated by this Agreement or otherwise adversely affect the ability or likelihood of Parent or Merger Sub timely consummating the transactions contemplated by this Agreement or (B) make the timely funding of the Debt Financing or the satisfaction of the conditions to obtaining the Debt Financing materially less likely to occur, (ii) reduce the aggregate amount of the Debt Financing or (iii) materially and adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letters or the definitive agreements relating thereto, it being understood and agreed that in any event, Parent may amend any of the Debt Commitment Letters or any definitive agreement relating thereto to add lenders, arrangers, bookrunners, agents, managers or similar entities that have not executed such Debt Commitment Letters as of such time and consent to the assignment of lending commitments under the Debt Commitment Letters to other lenders.
(d) Parent shall provide the Company with prompt written notice of the receipt of any notice or other communication from any Financing Source with respect to such Financing Source’s failure or anticipated failure to fund its commitments under any Debt Commitment Letter or definitive agreement in connection therewith in a manner that would reasonably be expected to render it unable to consummate the transactions contemplated by this Agreement. Parent shall keep the Company reasonably informed on a reasonably current basis of the status of Parent’s and its Subsidiaries’ efforts to consummate the Debt Financing, including providing copies of any amendment, modification or replacement of the Debt Commitment Letter (provided that any fee letter may be redacted to remove fee amounts, the rates and amounts included in the “market flex” provisions and certain other economic terms (none of which could adversely affect the amounts, availability, timing or conditionality of the Debt Financing)). Parent shall give the Company prompt notice of any (i) upon becoming aware material breach or material default by any party to the Debt Commitment Letters or the definitive agreements related thereto of any breach which Parent obtains knowledge, (ii) actual or, to the knowledge of any material provision of any New Sponsor Equity Commitment Letter Parent, threatened in writing withdrawal, repudiation, or termination of any New Sponsor Equity of the Debt Commitment Letter by any party thereto Letters or such definitive agreements, or (iiiii) upon the receipt of material dispute or disagreement between or among any written notice from any party to a New Sponsor Equity Commitment Letter with respect parties to any threatened breach of any material provision of the Debt Commitment Letters or such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required definitive agreements with respect to the Equity obligations to fund the Debt Financing or any debt financing or indebtedness the amount of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board Debt Financing to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)funded at Closing.
(de) The Company shall use reasonable best efforts Notwithstanding anything contained in this Agreement to obtainthe contrary, execute Parent expressly acknowledges and deliver such documents or instruments as may be required for the Surviving Companyagrees that Parent’s due assumption of, and succession to, the CompanyMerger Sub’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes hereunder are not conditioned in any manner upon Parent or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the MergerSub obtaining any financing.
Appears in 2 contracts
Sources: Merger Agreement (Celgene Corp /De/), Merger Agreement (Bristol Myers Squibb Co)
Financing. (a) Subject Parent and Acquisition Sub shall use reasonable best efforts to take, or cause to be taken, all actions necessary, proper or advisable to consummate and obtain the Debt Financing, including using reasonable best efforts to: (i) maintain in effect the Commitment Letter and negotiate and enter into the Definitive Financing Agreements on the terms and conditions contained in the Commitment Letter and deliver to the Company a copy of this Agreementany Definitive Financing Agreements to the extent executed prior to the Effective Time promptly after execution thereof; (ii) satisfy on a timely basis (or obtain waiver of) all conditions under the Commitment Letter and, each of if applicable, the Definitive Financing Agreements applicable to Parent and Merger Acquisition Sub; and (iii) as soon as reasonably practicable, consummate, or cause the consummation of, the Debt Financing, including, in the event of a breach by the other parties thereto that impedes or delays or would reasonably be expected to impede or delay the Acceptance Time or the Effective Time, by making written demands and reasonable requests of such parties to cure such breach or otherwise provide reasonable assurances with respect to such party’s obligations thereunder. If all conditions to the lenders’ obligations under the Commitment Letter or Definitive Financing Agreements, as applicable, have been satisfied, Parent and Acquisition Sub shall use its their reasonable best efforts to consummate cause the Equity lenders providing such Debt Financing to fund, at the Acceptance Time, the Financing required to satisfy all of Parent’s and Acquisition Sub’s obligations at the Acceptance Time (provided, however, that nothing herein shall require Parent or Acquisition Sub to take any enforcement action, including through litigation, to cause such lenders to fund such Debt Financing). Parent and Acquisition Sub shall have the right from time to time to amend (including, by adding or replacing lenders, lead arrangers, bookrunners, syndication agents or similar entities), replace, supplement or otherwise modify, or waive any of its rights under, the Commitment Letter and/or substitute other debt or equity financing for all or any portion of the Debt Financing from the same and/or alternative financing sources; provided, that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter that amends the Debt Financing and/or substitution of all or any portion of the Debt Financing shall not, without the prior written consent of the Company (such consent not to be unreasonably withheld, delayed or conditioned): (A) reduce the aggregate amount of the Debt Financing; (B) impose new or additional conditions precedent or contingencies to the Debt Financing as set forth in the Commitment Letter (unless such conditions precedent or contingencies to the financing would not be: (1) materially adverse to Parent and Acquisition Sub or the Company; and (2) reasonably expected to prevent or impede or delay the Acceptance Time or the Effective Time.
); or (bC) prevent or impede or delay the Acceptance Time or the Effective Time. Parent shall keep the Company reasonably informed of the status of its efforts to arrange the Debt Financing; provided, that Parent shall be under no obligation to disclose any information that is subject to an attorney-client or similar privilege or protection; provided, however, that Parent shall give notice to the Company of the fact that it is withholding such information or documents and thereafter Parent and the Company shall use their respective commercially reasonable efforts to cause such information to be provided in a manner that would not reasonably be expected to waive the applicable privilege or protection. In the event any portion of the Debt Financing becomes unavailable or Parent or Acquisition Sub becomes aware of any event or circumstance that would reasonably be expected to make any portion of the Debt Financing unavailable, in each case, on the terms and conditions contemplated in the Commitment Letter, Parent and Acquisition Sub shall promptly notify the Company and shall use their reasonable best efforts to arrange and obtain from the same and/or alternative financing sources alternative financing upon terms and conditions not materially less favorable, taken as a whole, to Parent, Acquisition Sub and, with respect to conditions or contingencies to such alternative financing, the Company than those set forth in the Commitment Letter, in an amount sufficient, together with any available cash resources, to consummate the Merger, the Offer and the other Contemplated Transactions as promptly as practicable following the occurrence of such event. Parent and Acquisition Sub shall deliver to the Company true and complete copies of all agreements pursuant to any such source of alternative financing shall have committed to provide Parent and Acquisition Sub with any portion of the Debt Financing promptly after execution thereof. Parent and Acquisition Sub shall give the Company prompt notice notice: (ix) upon becoming aware of any breach of or potential breach threatened in writing by any material provision of any New Sponsor Equity party to the Commitment Letter or of any condition which may not be satisfied, in each case, of which Parent or Acquisition Sub becomes aware or any termination of any New Sponsor Equity the Commitment Letter by any party thereto or the Definitive Financing Agreement that occurs prior to the funding thereunder; (iiy) upon the receipt of any written notice or other written communication from any other party to a New Sponsor Equity Commitment Letter thereto with respect to any threatened breach breach, default, termination or repudiation by any party to any of any material provision of such New Sponsor Equity the Commitment Letter or threatened termination Definitive Financing Agreement related to the Financing of any provisions of the Commitment Letters or the Definitive Financing Agreement, if applicable, related to the Debt Financing that occurs prior to the funding thereunder; and (z) if at any time for any reason Parent or Acquisition Sub believes in good faith that it will not be able to obtain all or any portion of the Debt Financing on the terms and conditions contemplated by the Commitment Letter or the Definitive Financing Agreements, if applicable. As soon as reasonably practicable, following written request by the Company, Parent and Acquisition Sub shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause “(x),” “(y)” or “(z)” of the immediately preceding sentence; provided that they need not provide any information that is subject to contractual confidentiality restrictions, privileged or that is requested for purposes of litigation; provided, however, that, Parent shall: (I) give reasonable notice to the Company of the fact that either it or Acquisition Sub is not providing such New Sponsor Equity Commitment Letterinformation pursuant to this Section 6.12(a); (II) inform the Company with sufficient detail of the reason for not providing such information; and (III) with respect to reasons relating to contractual confidentiality restrictions and privilege, use, and cause Acquisition Sub to use, commercially reasonable efforts to cause the information that is subject to such restriction or privilege to be provided in a manner that would not reasonably be expected to violate such restriction or privilege. On the sixth business day (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) immediately prior to the scheduled Expiration Date, Parent shall make a determination as to whether the Funding Condition is reasonably expected to be satisfied on the scheduled Expiration Date and, if Parent, acting reasonably and in good faith, determines that the Funding Condition is reasonably expected to be satisfied on the scheduled Expiration Date, Parent and Acquisition Sub shall waive such condition prior to 11:59 p.m., Eastern Time, on such sixth business day.
(cb) Each party hereto shall providePrior to the Acceptance Time, the Company shall, and shall cause each of its Subsidiaries and each the Representatives of their respective Representatives the Acquired Corporations to provide, all at Parent’s sole expense, cooperation in connection with the arrangement of any Financing as may be reasonably requested by Parent or Acquisition Sub which shall include, but not be limited to, the following:
(i) causing the Company’s senior management and finance department, and using commercially reasonable efforts to cause its other Representatives to participate in a reasonable number of meetings, presentations (including marketing (or similar presentations) and lender and other investor presentations), road shows, sessions with rating agencies and due diligence sessions (including accounting due diligence) in connection with any Financing;
(ii) assisting in the preparation of customary bank information memoranda and bank syndication materials, rating agency presentations, offering documents, private placement memoranda, prospectuses and similar documents as may be requested or required in connection with any Financing, including the syndication thereof, but in each case, solely with respect to the Equity information relating to the Company and its Subsidiaries;
(iii) providing Parent reasonable access at reasonable times all other documentation and information, including all customary financial and other information relating to the Company and its Subsidiaries, and other items, in each case, contemplated by the Commitment Letter and the Definitive Financing Agreements or as otherwise reasonably requested by Parent in connection with any debt financing or indebtedness Financing;
(iv) providing reasonable access at reasonable times to properties, books and records of the Company Acquired Corporations as reasonably requested by Parent or the sources of any Financing, including permitting such persons to perform customary “due diligence” in connection with any Financing;
(v) using commercially reasonable efforts to cause the Company’s independent public accountants to cooperate with Parent’s commercially reasonable efforts to obtain any Financing, including by participating in drafting sessions and accounting due diligence sessions and by promptly providing, upon request: (A) consent to the incorporation of such auditors’ reports in SEC filings and offering memoranda which include any of the Acquired Corporations’ financial information; and (B) customary comfort letters (including “negative assurance” comfort) upon completion of customary procedures;
(vi) furnishing such information and arranging for delivery of any collateral to be physically pledged, in each case, to the extent reasonably necessary to facilitate the pledging of collateral and perfection of liens and the providing of guarantees, in each case, at the Effective Time; and
(vii) furnishing all documentation and other information required by any Governmental Body in connection with any Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT ACT; provided, that: (1) such requested assistance and cooperation does not unreasonably interfere with the ongoing operations of the Acquired Corporations; (2) none of the Acquired Corporations shall be required to pay any fees (including commitment or other similar fees) or incur any other liability or expense in connection with the consummation Financing (or any replacement thereof) prior to the Effective Time; (3) no incurrence of Indebtedness or other obligation of any Acquired Corporation under any Financing shall be effective until the Effective Time; (4) no Acquired Corporation shall be required to provide access to or disclose information where the Company reasonably determines that such access or disclosure would jeopardize the attorney-client privilege of an Acquired Corporation or contravene any Legal Requirement or any contract to which an Acquired Corporation is a party; provided that, the Company shall give notice to Parent of the Transactions, including (i) fact that it is withholding such information or documents and thereafter the Company obtaining approval of and Parent shall use their respective commercially reasonable efforts to cause such information to be provided in a manner that would not reasonably be expected to waive the applicable privilege or protection; (5) no Acquired Corporation shall be required to: (A) an increase take any action that will conflict with or violate such Acquired Corporation’s organizational documents or any Legal Requirement or result in the size of the Company Board contravention of, or that would reasonably be expected to such number as result in a violation or breach of, or default under, any material Contract to which an Acquired Corporation is requested in writing by Parent and a party; or (B) issue any bank information memoranda, high-yield offering prospectuses or memoranda required in relation to any Financing (and any such bank information memoranda, high-yield offering prospectuses or memoranda shall reflect the election Surviving Corporation and/or its Subsidiaries as the obligors on such Financing); and (6) no Acquired Corporation shall be required to enter into or approve any financing or purchase agreement for any Financing prior to the Effective Time. Parent shall, reasonably promptly upon request by the Company, reimburse the Company Board for all out of pocket costs and expenses incurred by any Acquired Corporation in connection with such cooperation and assistance. Parent shall indemnify and hold harmless the Acquired Corporations and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them prior to the Effective Time in connection with any Financing or the arrangement of any Financing and any information utilized in connection therewith (other than historical information relating to the Acquired Corporations); except in the event such termination is determined to have arisen out of or resulted from the fraud, willful misconduct, gross negligence or intentional misrepresentation of the individuals who Acquired Corporations or their respective Representatives, as determined by a final non-appealable judgment of a court of competent jurisdiction. Notwithstanding anything to the contrary contained in this Agreement, the Financing is and will serve as directors remain the sole responsibility of the Surviving Company, in each case Parent and Acquisition Sub and none of clauses Acquired Corporations or any of their respective Representatives: (Ax) and (B), effective as shall be required to waive or amend any terms of immediately this Agreement or agree to pay any commitment or other fees or reimburse any expenses prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure or give any indemnities that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to are not contingent on the Effective Time Time; or (y) be required to commit to taking shall have any action that liability or incur any losses, damages or penalties with respect thereto.
(c) If a Commitment Letter is not contingent upon the Closing (amended, replaced, supplemented or otherwise modified, including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated as a result of obtaining alternative financing in accordance with Section 6.12(a), or if Parent substitutes other debt or equity financing for all or a portion of the Debt Financing, each of Parent and the Company shall comply with its terms prior covenants in Section 6.12(a) and Section 6.12(b) with respect to the occurrence of Commitment Letter as so amended, replaced, supplemented or otherwise modified and with respect to such other financing to the Effective Time, same extent that Parent shall promptly reimburse and the Company for any reasonable and documented out-of-pocket costs incurred by it in connection would have been obligated to comply with respect to the Company’s compliance with Section 6.07(c)(i) through (iii)Debt Financing.
(d) The Company shall hereby consents to the use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under trademarks, service marks and logos of the Facility Agreement Acquired Corporations in connection with any Financing.
(e) All non-public or otherwise confidential information regarding the consummation Company obtained by Parent or its Representatives or any other Person pursuant to this Section 6.12 shall be governed by the provisions of the TransactionsConfidentiality Agreement; provided, that notwithstanding the terms of the Confidentiality Agreement, upon notice to the Company, Parent may provide such information to potential sources of capital and to rating agencies and prospective lenders and investors during syndication or placement of any Financing (including the Merger and any alternative financing to be entered into pursuant to Section 6.12(a)) subject to customary confidentiality arrangements with such Persons regarding such information (ii) customary legal opinions as are required it being acknowledged by the 2022 Indenture Company that the confidentiality provisions set forth in the Commitment Letter are customary and acceptable) or as otherwise permitted by the Facility Agreement in connection with the consummation of the Transactions, including the MergerConfidentiality Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Riverbed Technology, Inc.), Merger Agreement (Opnet Technologies Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, each Each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and consummate the Equity Debt Financing on the terms and conditions described in the Debt Letters, no later than the time at which the Closing is required to occur pursuant to Section 2.2), including using their reasonable best efforts to (i) (A) maintain in effect the Debt Letters and comply with all of their respective obligations thereunder to the extent that the failure to comply would adversely impact the amount or timing of Debt Financing (taking into account the expected timing of the Marketing Period) or the availability of the Debt Financing at or prior Closing, (B) negotiate, enter into and, assuming all conditions to Closing set forth in Article VIII hereof have been satisfied, deliver definitive agreements with respect to the Effective TimeDebt Financing reflecting the terms and conditions contained in the Debt Letters or on other terms that (1) are acceptable to Parent and Merger Sub in their sole discretion, (2) would not reasonably be expected to delay (taking into account the expected timing of the Marketing Period) or adversely affect the ability of Parent and Merger Sub to consummate the transactions contemplated hereby and (3) would otherwise not be prohibited by Section 7.5(c), so that such agreements are in effect no later than the time at which the Closing is required to occur pursuant to Section 2.2 and (C) enforce their rights under the Debt Letters to the extent that the failure to enforce would adversely impact the amount or timing of Debt Financing (taking into account the expected timing of the Marketing Period) or the availability of the Debt Financing at Closing and (ii) satisfy on a timely basis (taking into account the expected timing of the Marketing Period) (or obtain the waiver of) all the conditions to the Debt Financing and the definitive agreements related thereto that are applicable to Parent and Merger Sub and in their control. In the event that (x) all conditions set forth in Article VIII have been satisfied or waived or, upon funding shall be satisfied or waived, and (y) the conditions to the Debt Financing have been satisfied or waived, or, upon funding shall be satisfied or waived, Parent and Merger Sub shall use their reasonable best efforts to cause the Persons providing the Debt Financing (the “Debt Financing Parties”) to fund the Debt Financing at Closing.
(b) Parent shall keep the Company reasonably informed on a reasonably current basis of any material developments concerning the status of the Debt Financing which could reasonably be expected to impact the availability of the Debt Financing and upon the Company’s reasonable written request, provide the Company with copies of executed material definitive agreements related to the Debt Financing. Without limiting the foregoing, Parent shall promptly (and in no event less than one Business Day) after obtaining knowledge thereof, give the Company prompt written notice of any (i) upon becoming aware breach or default by Parent, its Affiliates, any Debt Financing Party or any other party to the Debt Letters or any definitive document related to the Debt Financing (or any event or circumstance, with or without notice, lapse of time, or both, would give rise to any breach or default) if such breach or default could reasonably be expect to result in a delay of, or in any way limit, the availability of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or the Debt Financing, (ii) upon the receipt by Parent of any written notice or other written communication from any party to a New Sponsor Equity Commitment Letter Debt Financing Parties with respect to any threatened breach or actual withdrawal, repudiation, expiration, intention not to fund under or termination of the Debt Letters or the Debt Financing, (iii) receipt by Parent of any written notice or other written communication from any Debt Financing Parties with respect to material provision dispute or disagreement between or among any parties to the Debt Letters or any definitive document related to the Debt Financing (other than ordinary course negotiations) with respect to the obligation to provide the Debt Financing or the amount of the Debt Financing to be funded at Closing, in each case, that could reasonably be expected to make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or delay the availability of the Debt Financing or (iv) if for any reason Parent in good faith believes that there is a material possibility that it will not be able to obtain all or any portion of the Debt Financing needed to consummate the Merger at the Effective Time; provided, that in no event will Parent be under any obligation to provide any information shared among Parent, Merger Sub and their professional advisors in connection with matters contemplated by the foregoing that is subject to attorney-client or other privilege if Parent and Merger Sub shall have used their reasonable best efforts to disclose such New Sponsor Equity Commitment Letter or threatened termination of any information in a way that would not waive such New Sponsor Equity Commitment Letterprivilege.
(c) Each party hereto Parent may amend, supplement, modify, terminate, assign or agree to any waiver under the Debt Letters without the prior written approval of the Company, provided that Parent shall providenot, without Company’s prior written consent, permit any amendment, modification, assignment, termination or material waiver to be made to, or consent to or agree to any waiver of, any provision of or remedy under the Debt Letters which would (A) reduce the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount (except as set forth in any “market flex” provisions contemplated by the fee letter)) to an amount less than the amount required to consummate the transactions contemplated hereby or (B) impose new or additional conditions to the Debt Financing or otherwise expand, amend or modify any of the conditions to the Debt Financing, in each case, in a manner that would or would reasonably be expected to (I) delay, prevent or make less likely the consummation of the Merger or the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) at the Effective Time (taking into account the expected timing of the Marketing Period) (it being understood and agreed that, in any event, Parent may amend the Debt Letters to add additional Financing Sources), (II) adversely impact the ability of Parent to enforce its rights against the Debt Financing Parties or any other parties to the Debt Letters or the definitive agreements with respect thereto or (III) adversely affect the ability of Parent to timely consummate the Merger and the other transactions contemplated hereby. In the event that new commitment letters and/or fee letters are entered into in accordance with any amendment, replacement, supplement or other modification of the Debt Letters permitted pursuant to this Section 7.5, such new commitment letters and/or fee letters shall be deemed to be a part of the “Debt Financing” and deemed to be the “Debt Letters” for all purposes of this Agreement. Parent shall promptly (and in any event no later than one Business Day) deliver to the Company true, correct and complete copies of any termination, amendment, modification or replacement of the Debt Letters.
(d) If funds in the amounts set forth in the Debt Letters, or any portion thereof, become unavailable on the terms and conditions (including any “market flex” provisions applicable thereto) contemplated in the Debt Letters, Parent and Merger Sub shall, as promptly as practicable following the occurrence of such event (taking into account the Marketing Period), (x) notify the Company in writing thereof, (y) use their respective reasonable best efforts to obtain substitute financing, including from alternative sources, in an amount sufficient, when added to the portion of the Debt Financing that is available and any cash of the Company and its Subsidiaries on hand at the Closing Date and the other cash available to Parent and its Affiliates in the Escrow Account, to enable Parent to consummate the payment of the Maximum Cash Amount pursuant to the Merger and the other transactions contemplated hereby in accordance with the terms hereof (the “Substitute Financing”) and (z) use their respective reasonable best efforts to obtain new financing commitment letter(s) that provide for such Substitute Financing and, promptly after execution thereof (and, in any event, no later than one Business Day), deliver to the Company true, complete and correct copies of the new commitment letter(s) and the related fee letters; provided that in no event shall Parent and Merger Sub be obligated to accept or pursue any Substitute Financing if it is materially less favorable to Parent in any respect than the Debt Financing contemplated by the Debt Letters. The provisions of this Section 7.5 shall be applicable to the Substitute Financing and upon obtaining any commitment for any such Substitute Financing, such financing shall be deemed to be a part of the “Debt Financing” and any commitment letter and fee letter for such Substitute Financing shall be deemed the “Debt Letters”, as applicable, for all purposes of this Agreement. Parent shall pay, or cause to be paid, as the same shall become due and payable, all fees and other amounts that become due and payable under the Debt Letters. Notwithstanding anything to the contrary contained herein, in no event shall Parent and Merger Sub be required pursuant to this Agreement to agree to pay to the Debt Financing Parties providing the Debt Financing any additional fees or to increase any interest rates or original issue discounts applicable to the Debt Financing, except as expressly required pursuant to the Debt Letters in existence as of the date hereof. The Company acknowledges and agrees that Parent and Merger Sub shall not be required to consummate the Debt Financing until the final day of the Marketing Period.
(e) Notwithstanding anything contained in this Agreement to the contrary, Parent and Merger Sub expressly acknowledge and agree that neither Parent’s nor Merger Sub’s obligations to consummate the transactions contemplated by this Agreement are in any manner conditioned upon Parent or Merger Sub obtaining the Debt Financing, any Substitute Financing or any other financing.
(f) Prior to the Closing, the Company and its Subsidiaries shall, and shall use their reasonable best efforts to cause each of its Subsidiaries and each of their respective Representatives Representatives, including legal and accounting, to provide, as promptly as reasonably practicable, to Parent and Merger Sub all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company requested by Parent and Merger Sub in connection with arranging, obtaining and syndicating the consummation Debt Financing (including, for the avoidance of doubt, consummating the offering of the Transactions“Notes” as contemplated by the Debt Commitment Letter (the “New Notes”)) and causing the conditions in the Debt Letters to be satisfied, including including, subject to the limitations set forth in the definition of Required Information:
(i) preparing and furnishing Parent, Merger Sub and their Financing Sources as promptly as practicable all Required Information and all other financial and other pertinent information and disclosures regarding the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreementtheir businesses, operations, financial projections and prospects) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee Parent or Merger Sub to assist in Parent and Merger Sub’s preparation of the 2022 Notes or as may be required under Offering Documents and all supplements thereto;
(ii) using reasonable best efforts to assist in the Facility Agreement preparation of any Offering Documents (and any supplement thereto) (including identifying any portion of the information included therein that constitutes material, non-public information);
(iii) upon reasonable advance notice to the Company from the Parent, having appropriate senior management of the Company and its Subsidiaries, with appropriate seniority and expertise, and appropriate Representatives participate in a reasonable number of meetings (including customary one-on-one meetings), due diligence sessions, drafting sessions and lender and “roadshow” presentations and ratings agency meetings and sessions;
(iv) cooperating with the marketing efforts of Parent and the Financing Sources in connection with the consummation Debt Financing, including direct contact between senior management and Representatives of the TransactionsCompany and its Subsidiaries and potential lenders and investors in the Debt Financing;
(v) cooperating with the Financing Sources and their advisors in performing their due diligence;
(vi) if and to the extent Parent elects to prepay, including redeem, terminate or otherwise discharge any of the Merger and Company’s existing indebtedness other than the Company Notes, which are the subject of Section 7.6, (iiw) customary legal opinions as are delivering notices of prepayment, redemption or termination within the time periods required by the 2022 Indenture relevant agreements governing such indebtedness (to the extent such notices are and are permitted to be conditioned on the occurrence of the Closing), (x) providing all cooperation reasonably requested by Parent and Merger Sub to facilitate and effectuate such prepayment, redemption, termination or the Facility Agreement discharge (including via a tender offer), including communicating with agents, lenders, trustees and holders of such indebtedness, (y) delivering any other documents and materials as may be necessary in connection with the consummation payoff, discharge and termination in full on the Closing, of such indebtedness and liens under such indebtedness and (z) obtaining customary payoff letters, lien terminations, instruments of discharge to be delivered at the Closing and any possessory collateral delivered in connection with such indebtedness;
(vii) providing at least three (3) Business Days prior to the Closing Date, all documentation and other information about the Company and each of its Subsidiaries as is reasonably requested in writing by Parent at least 8 Business Days prior to the Closing Date with respect to applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act;
(viii) cooperating with Parent’s and Merger Sub’s legal counsel in connection with any legal opinions that such legal counsel may be required to deliver in connection with the Debt Financing;
(ix) using reasonable best efforts to obtain customary consents of independent accountants of the TransactionsCompany and its Subsidiaries for use of their auditor opinions in any materials relating to the Debt Financing at the expense of and as reasonably requested by Parent on behalf of the Financing Sources and directing such accountants to partake in customary accounting and auditor due diligence sessions;
(x) using reasonable best efforts to assist Parent and Merger Sub in obtaining any corporate credit and family ratings from any ratings agencies in respect of the relevant borrower, issuer or parent guarantors under the Debt Financing, including assisting Parent, Merger Sub and the Merger.Financing Sources in the preparation of materials for rating agency presentations;
(xi) using reasonable best efforts to assist in the preparation, execution and delivery of definitive financing documents, including equity, guarantee and collateral documents and other certificates and documents as may reasonably be requested by Parent;
(xii) facilitating the pledging of collateral for the Debt Financing (including the delivery of original share certificates, together with share powers executed in blank, with respect to the Company and each of its Subsidiaries), including taking reasonable actions necessary to permit the Financing Sources to evaluate the Company’s and its Subsidiaries’ assets, inventory, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements (including establishing bank and other accounts and blocked account and control agreements in connection with the foregoing);
(xiii) using reasonable best efforts to assist the Financing Sources in benefitting from the existing lender relationships of the Company and its Subsidiaries, including seeking consent to the transactions contemplated hereby from lenders under existing Advance Facilities and Warehouse Facilities;
(xiv) executing and delivering such documen
Appears in 2 contracts
Sources: Merger Agreement (Wmih Corp.), Merger Agreement (Nationstar Mortgage Holdings Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub Subsidiary shall use its use, and shall cause their Affiliates to use, their respective reasonable best efforts to consummate take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange the Equity Debt Financing as promptly as practicable on the terms and conditions described in the Debt Commitment Letters, including using (and causing their Affiliates to use) their respective reasonable best efforts to: (i) maintain in effect the Financing Commitments, (ii) provide to the Company a list of the information and the assistance required from the Company for Parent to prepare the Required Financial Information as promptly as practicable (and in any event not later than 10 Specified Business Days) after the date hereof; (iii) provide the Required Financial Information to the Debt Financing Sources as promptly as practicable after the date hereof, (iv) negotiate definitive agreements with respect thereto as promptly as practicable after the date hereof substantially on the terms and conditions contained in the Financing Commitments or, with respect to conditions relating to funding, on other terms no less favorable to Parent or Merger Subsidiary, which agreements shall be in effect no later than the Effective Time, (iv) satisfy, or cause their Representatives to satisfy, on a timely basis all conditions applicable to Parent, Merger Subsidiary or their respective Representatives in such definitive agreements to be satisfied by Parent, Merger Subsidiary or their respective Representative, and (v) cause the Debt Financing Parties and any other Persons providing Debt Financing to fund the Debt Financing at or prior to the Effective Time.
(b) Parent shall not agree to, or permit, any amendments or modifications to, or any waivers under, the Financing Commitments without the prior written consent of the Company if such amendments, modifications or waivers would reduce the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing) such that after giving effect to such amendment, the Parent would not have sufficient funds under the amended Financing Commitments, together with any cash on hand, to consummate the Merger, or impose new or additional conditions or otherwise expand the then existing conditions precedent to funding of the Debt Financing at or prior to the Effective Time, if such new or additional conditions or such expanded existing conditions would reasonably be expected to (i) prevent or materially delay or impair the ability of Parent to consummate the Merger or (ii) adversely impact the ability of Parent or Merger Subsidiary to enforce its rights against the other parties to the Financing Commitments; provided that, for the avoidance of doubt, each of Parent and Merger Subsidiary may amend the Debt Commitment Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letter as of the date hereof; provided further that, without derogating from any of the Company’s other obligations under Section 6.08, the Company shall have no obligation to comply with Section 6.08 of this Agreement in connection with such amendments.
(c) In the event that Parent determines that any portion of the Debt Financing will not be available in the manner or from the sources contemplated in the Financing Commitments, (i) Parent shall promptly so notify the Company and (ii) Parent and Merger Subsidiary shall use their respective reasonable best efforts to arrange and obtain, and to negotiate and enter into definitive agreements with respect to, alternative financing from alternative financial institutions in an amount sufficient to consummate the transactions contemplated by this Agreement that includes conditions to funding not materially less favorable to Parent than those in the Financing Commitments, as promptly as practicable following the occurrence of such event (and in any event no later than the Effective Time).
(d) Each of Parent and Merger Subsidiary acknowledges and agrees that neither the obtaining of the Debt Financing or any alternative financing, nor the completion of any issuance of securities contemplated by the Debt Financing or any alternative financing, is a condition to the Closing.
(e) Parent shall (i) promptly furnish the Company complete, correct and executed copies of the Financing Commitments and any amendment, modification or replacement of any Financing Commitments promptly upon their execution (provided, that provisions in such fee letter(s) related to fees and pricing may be redacted (none of which redacted provisions adversely affect the availability of, or impose additional conditions on the availability of, the Debt Financing at the closing)), (ii) give the Company prompt written notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter threatened (in writing) breach by any party thereto of any of the Financing Commitments or the Financing Commitment of which Parent or Merger Subsidiary becomes aware or any termination or threatened (iiin writing) upon termination thereof, (iii) after the receipt of any written notice or other written communication received from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach Debt Financing Party, give the Company prompt written notice of any material provision of such New Sponsor Equity dispute or disagreement between or among any parties to any Financing Commitment Letter that would reasonably be expected to result in a breach under the Financing Commitment, (iv) give the Company prompt written notice if for any reason Parent or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives Merger Subsidiary has determined in good faith that it will not be able to provide, obtain all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness portion of the Company in connection with Debt Financing on substantially the consummation of terms and conditions contemplated by the TransactionsFinancing Commitments, including (iv) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is promptly furnish any additional information reasonably requested in writing by Parent and (B) the election Company relating to the Company Board of the individuals who will serve as directors of the Surviving Company, circumstances in each case of clauses (Ai) through (iv) of this Section 7.04(e)) and (B), effective as of immediately prior to the Effective Time, and (iivi) keep the Company using commercially reasonable reasonably informed of the status of its efforts to ensure that arrange the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor Debt Financing (or any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iiialternative financing).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 2 contracts
Sources: Merger Agreement (NICE Ltd.), Merger Agreement (inContact, Inc.)
Financing. (a) Subject Parent and Acquisition Sub shall use their commercially reasonable efforts to obtain the proceeds of the Financing on the terms and conditions of this Agreementdescribed in the Commitment Letter, each of Parent Consent Letter and Merger Sub shall use its reasonable best efforts Parent Commitment Letter and to consummate obtain the funds contemplated by the Equity Financing at or prior Commitment (and to contribute such funds to the Effective Time.
(b) Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the TransactionsCompany), including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that (A) negotiate definitive agreements with respect to the Financing consistent with the terms and conditions contained in the Commitment Letter and (B) satisfy on a timely basis all conditions in such definitive agreements the satisfaction of which is within the control of Parent or Acquisition Sub. Parent and Acquisition Sub shall use their commercially reasonable efforts to comply with their respective obligations, and enforce their respective rights, under the Commitment Letter, the Parent Consent Letter and Parent Commitment Letter and shall cause RHJI to comply with its obligations under the Equity Commitment. Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to obtain the proceeds of the Financing and shall not permit any amendment or modification to, or any waiver of any material provision or remedy under, any of the Commitment Letter, the Parent Consent Letter, Parent Commitment Letter or the Equity Commitment if such amendment, modification, waiver or remedy amends the conditions to the drawdown of the Financing in a manner adverse to the interests of the Company and its shareholders, in each case, in any material respect or would adversely affect in any material respect the ability of Parent or the Company to effect the Financing or obtain the proceeds of the Equity Commitment. The Company shall also use commercially reasonable efforts to assist and cooperate with Parent and Acquisition Sub in connection with their efforts to obtain the proceeds of the Financing, including providing reasonably required information relating to the Company and the Surviving Company benefit from Subsidiaries to the existing lending relationships financial institution or institutions providing the Financing and executing and delivering, and causing the Company Subsidiaries to execute and deliver, definitive agreements with respect to the Financing and customary certificates, legal opinions (which may be reasoned, if counsel reasonably believes it cannot give the opinion otherwise) or other documents and instruments relating to guarantees, the pledge of collateral and other matters ancillary to the Financing as may be reasonably requested by Parent in connection with the Financing; provided, however, that no obligation of the Group Companies to Company or any Company Subsidiary under any such certificate, document or instrument shall be effective until the extent requested by Parent. Neither Effective Time and none of the Company nor or any of its Subsidiaries Company Subsidiary shall (x) be required to pay any commitment or other similar fee prior to or incur any other liability in connection with the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective Financing prior to the Effective Time. If In the event that the Financing is not available to consummate the Refinancing and pay related fees and expenses of the Transactions contemplated by this Agreement is terminated in accordance with its terms prior to and the occurrence of the Effective Timeother Transaction Agreements, then Parent shall promptly reimburse notify the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company Parent and Acquisition Sub shall use their commercially reasonable best efforts to obtainobtain alternative financing on terms that are no less favorable to Parent and Acquisition Sub than those set forth in the Commitment Letter, execute and deliver such documents Parent Consent Letter or instruments Parent Commitment Letter, as may be required for the Surviving Company’s due assumption ofapplicable, and succession to, in the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents same amounts as may be reasonably requested contemplated by the trustee of Commitment Letter (including for working capital purposes following the 2022 Notes Closing) or Parent Commitment Letter, as may be required under applicable (the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required "Alternative Financing"); provided that no such Alternative Financing shall require a greater cash equity commitment than that contemplated by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the MergerEquity Commitment.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Metaldyne Corp), Agreement and Plan of Merger (Credit Suisse/)
Financing. (a) Subject Parent is a party to and has accepted a fully executed commitment letter dated April 12, 2023 (together with all exhibits and schedules thereto, the “Commitment Letter”) from the lenders party thereto (collectively, the “Lenders”) pursuant to which the Lenders have agreed, subject to the terms and conditions of this Agreementthereof, each of Parent and Merger Sub shall use its reasonable best efforts to consummate provide debt financing in the Equity Financing at or prior amounts set forth therein. The debt financing committed pursuant to the Effective TimeCommitment Letter is collectively referred to in this Agreement as the “Financing.”
(b) Parent shall give has delivered to the Company prompt notice (i) upon becoming aware a true, complete and correct copy of any breach of any material provision of any New Sponsor Equity the executed Commitment Letter or termination of and any New Sponsor Equity fee letters entered into pursuant to the Commitment Letter by any party thereto or (ii) upon Letter, subject, in the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision case of such New Sponsor Equity Commitment Letter fee letters, to redaction solely of fee and other economic provisions that are customarily redacted in connection with transactions of this type and that could not in any event affect the conditionality, enforceability, availability, termination or threatened termination amount of any such New Sponsor Equity Commitment Letterthe Financing.
(c) Each party hereto shall provideExcept as expressly set forth in the Commitment Letter, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect there are no conditions precedent to the Equity obligations of the Lenders to provide the Financing or any debt financing or indebtedness contingencies that would permit the Lenders to reduce the aggregate principal amount of the Company in connection with Financing, including any condition or other contingency relating to the consummation amount or availability of the Transactions, including (i) the Company obtaining approval of (A) an increase Financing pursuant to any “flex” provision. Parent does not have any reason to believe that it will be unable to satisfy on a timely basis all terms and conditions to be satisfied by it in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately Commitment Letter on or prior to the Effective TimeClosing Date, and (ii) nor does Parent have Knowledge that any Lender will not perform its obligations thereunder. There are no side letters, understandings or other agreements, contracts or arrangements of any kind relating to the Company using commercially reasonable efforts to ensure Commitment Letter or the Financing that could affect the Parent and the Surviving Company benefit from the existing lending relationships conditionality, enforceability, availability, termination or amount of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)Financing.
(d) The Company shall use reasonable best efforts Financing, when funded in accordance with the Commitment Letter and giving effect to obtainany “flex” provision in or related to the Commitment Letter (including with respect to fees and original issue discount), execute and deliver such documents or instruments as may be required will provide Parent with cash proceeds on the Closing Date sufficient for the Surviving Company’s due assumption of, and succession to, the Companysatisfaction of all of Parent’s obligations under the 2022 Indenture this Agreement and the Facility AgreementCommitment Letter, including (i) customary closing certificates the payment of the Merger Consideration, and other similar documents as may be reasonably requested any fees and expenses of or payable by Parent or Parent’s Affiliates, any required reimbursement of fees and expenses paid by the trustee Company and/or its Subsidiaries, and for any repayment or refinancing of any outstanding indebtedness (including the Company Credit Agreement) of the 2022 Notes Company and/or its Subsidiaries contemplated by, or as may be required under the Facility Agreement in connection with the consummation transactions described in, this Agreement or the Commitment Letter (such amounts, collectively, the “Financing Amounts”).
(e) The Commitment Letter constitutes the legal, valid, binding and enforceable obligations of Parent and all the other parties thereto and is in full force and effect. 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 under the terms and conditions of the TransactionsCommitment Letter. Parent does not have any reason to believe that any of the conditions to the Financing will not be satisfied by Parent on a timely basis or that the Financing will not be available to Parent on the Closing Date, except pursuant to a Permitted Termination (as defined below). Parent has paid in full any and all commitment fees or other fees required to be paid pursuant to the terms of the Commitment Letter on or before the date of this Agreement, and will pay in full any such amounts due on or before the Closing Date as and when due. In each case except as permitted by Section 5.16(b) (with any such modification, amendment or alteration promptly notified in writing to Company), the Commitment Letter has not been modified, amended or altered, the Commitment Letter will not be amended, modified or altered at any time through the Closing, and the aggregate commitments under the Commitment Letter have not been terminated, reduced, withdrawn or rescinded in any respect, and, to the Knowledge of Parent, no termination, reduction, withdrawal, modification, amendment, alteration or rescission thereof is contemplated (other than to the extent reduced pursuant to the mandatory reduction terms of the Commitment Letter, including with the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with proceeds from the consummation of the Transactions, transactions contemplated by the Climate Transaction Agreement).
(f) In no event shall the receipt or availability of any funds or financing (including the MergerFinancing) by or to Parent or any of its Affiliates or any other financing or other transactions be a condition to any of Parent’s obligations under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (National Instruments Corp), Merger Agreement (Emerson Electric Co)
Financing. (a) Subject Buyer has received, accepted and agreed to a commitment letter, dated March 6, 2011 (the “Commitment Letter”) from the lenders party thereto (collectively, the “Lenders”) relating to the terms commitment of the Lenders to provide the debt financing required to consummate the Contemplated Transactions. The debt financing required to consummate the Contemplated Transactions, whether obtained pursuant to the arrangements contemplated by the Commitment Letter or through substitute permanent financing arrangements which may involve public or private offerings of debt or equity securities, is collectively referred to in this Agreement as the “Financing”. A complete and conditions correct copy of this Agreement, each of Parent and Merger Sub the executed Commitment Letter has been provided to Agent.
(b) Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to consummate and obtain the Financing on the terms and conditions described in the Commitment Letter, including (i) taking actions to enforce its rights under the Commitment Letter and (ii) using its reasonable best efforts to (A) negotiate definitive agreements with respect thereto on the terms and conditions contained therein or on other terms no more adverse to Buyer in any material respect, (B) satisfy on a timely basis all conditions applicable to it in such definitive agreements and (C) consummate the Equity Financing at or prior to the Effective Time.
(b) Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment LetterClosing but in no event later than June 1, 2011.
(c) Each party hereto shall provideBuyer may terminate and replace the Commitment Letter with a New Commitment Letter or may amend the Commitment Letter to add lenders, and shall cause each of its Subsidiaries and each of their respective Representatives to providelead arrangers, all cooperation bookrunners, syndication agents or similar entities who had not executed the Commitment Letter as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with date hereof, so long as (i) the addition of such lenders, lead arrangers, bookrunners, syndication agents or similar entities would not reasonably be expected to prevent or materially delay the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, Contemplated Transactions and (ii) the Company using commercially reasonable efforts Arranger (as defined in the Commitment Letter) shall remain obligated and committed to ensure that fund its financing commitments under the Parent Commitment Letter (as in effect prior to any such amendment) on the terms and conditions of, and subject to the Surviving Company benefit from assignment provisions set forth in, the existing lending relationships Commitment Letter (as in effect prior to any such amendment). Upon any such amendment, replacement, supplement or modification of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated Commitment Letter in accordance with its terms prior this Section 6.6(c), the term “Commitment Letter” shall mean the Commitment Letter as so amended, supplemented or modified or any New Commitment Letter in replacement of the Commitment Letter, as the case may be, and, in the event that Buyer obtains Alternative Financing in accordance with Section 6.6(d), the term “Commitment Letter” shall mean the commitment letter (as amended, replaced, supplemented or modified in accordance with this Section 6.6(c)) related to the occurrence of Alternative Financing. The term “New Commitment Letter” shall mean the Effective Time, Parent shall promptly reimburse instrument replacing the Company for existing Commitment Letter that (A) is on terms not materially less beneficial to Buyer than those set forth in the Commitment Letter; (B) does not involve any reasonable material conditions precedent to funding the Financing that are not contained in the Commitment Letter; and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i(C) through (iii).
(d) The Company shall use reasonable best efforts would not reasonably be expected to obtain, execute and deliver such documents prevent or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with materially delay the consummation of the Contemplated Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 2 contracts
Sources: Purchase Agreement (Tortoise Capital Resources Corp), Purchase Agreement (James River Coal CO)
Financing. (a) Subject Parent, Merger Sub I and Merger Sub II shall, and shall use reasonable best efforts to cause their Representatives and Affiliates to, use their reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the proceeds of the Debt Financing on the terms and conditions of this Agreementset forth in the Commitment Letter (including the market flex provisions set forth in any Fee Letter) as promptly as practicable after the date hereof, each of Parent and Merger Sub shall use its including using reasonable best efforts to (i) maintain in effect and comply with the Commitment Letter until Merger I, Merger II and the other Transactions are consummated, (ii) timely negotiate and enter into definitive agreements with respect to the Debt Financing (the “Debt Financing Documents”) on the terms and conditions set forth in the Commitment Letter (and the market flex provisions set forth in any Fee Letter) so that the Debt Financing Documents are in effect as promptly as practicable but in any event no later than the Closing, (iii) satisfy or cause to be waived on a timely basis all conditions applicable to Parent, Merger Sub I and Merger Sub II, their Representatives and their Affiliate set forth in the Commitment Letter or such definitive agreements and otherwise comply with their obligations thereunder; (iv) enforce Parent’s, Merger Sub I’s and Merger Sub II’s rights under the Commitment Letter and the Debt Financing Documents, (v) comply with Parent’s, Merger Sub I’s and Merger Sub II’s covenants and other obligations under the Commitment Letter and the Debt Financing Documents, (vii) fully pay (or cause to be fully paid) all commitment fees, ticking fees, other fees, costs, expenses and other amounts due and payable in connection with the Debt Financing; and (vi) upon the satisfaction or waiver of such conditions, consummate the Equity Financing at or prior to the Effective TimeDebt Financing.
(b) Parent shall not amend, modify or waive, or seek or agree to amend, modify or waive (in any case, whether by action or inaction), any term of the Commitment Letter or the Debt Financing Documents without the prior written consent of the Company. Parent shall not, and shall not permit any of its Affiliates to, take any action not otherwise required under this Agreement that is a breach of, or would result in termination of, the Commitment Letter. Parent shall keep the Company reasonably informed of the status of its efforts to arrange the Debt Financing and shall promptly provide to the Company copies of all executed amendments, modifications, consents or waivers to or under the Commitment Letter and all executed and substantially final draft Debt Financing Documents. Without limiting the generality of the foregoing, Parent shall give the Company prompt notice notice: (i) upon becoming aware of any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material provision of breach or default) by any New Sponsor Equity party to the Commitment Letter or termination any Debt Financing Documents of any New Sponsor Equity provision of such Commitment Letter or Debt Financing Documents; (ii) any termination, cancellation or repudiation by any party thereto to any of the Commitment Letter or Debt Financing Documents of which Parent becomes aware; (iiiii) upon of the receipt by Parent, Merger Sub I or Merger Sub II or any of their Affiliates or Representatives of any written notice or other communication from any party to a New Sponsor Equity Commitment Letter Person with respect to any threatened breach of (A) breach, default, termination or repudiation by any material provision of such New Sponsor Equity party to the Commitment Letter or threatened termination any Debt Financing Documents of any such New Sponsor Equity provision thereof or (B) dispute or disagreement between or among any parties to the Commitment LetterLetter or any Debt Financing Documents with respect to the Debt Financing; and (iv) if for any reason Parent, Merger Sub I or Merger Sub II or any of their Affiliates believes in good faith that (A) there is a dispute or disagreement between or among any parties to the Commitment Letter or any Debt Financing Documents with respect to the Debt Financing or (B) there is a reasonable likelihood that the Debt Financing will not be available for any reason on the terms, in the manner or from the sources contemplated by the Commitment Letter or any Debt Financing Documents.
(c) Each party hereto If the Debt Financing in an aggregate amount (together with cash and marketable securities on hand) at least equal to the aggregate Per Share Cash Consideration to be deposited with the Exchange Agent and all other amounts required to be paid pursuant to Article II, the Merger and the other transactions contemplated by this Agreement becomes unavailable on the terms and conditions contemplated by the Commitment Letter for any reason (such event, an “Original Financing Failure”), Parent shall providepromptly notify the Company in writing of the Original Financing Failure and Parent shall use all reasonable efforts to arrange and obtain, as promptly as reasonably practicable, alternative financing from alternative sources (including debt, equity or other financing) in an amount, when added with available cash and marketable securities of Parent and its Subsidiaries, sufficient to consummate the transactions contemplated by this Agreement and to pay all related fees and expenses (the “Alternate Financing”), and to obtain one or more new financing commitment letters with respect to such Alternate Financing (collectively, the “New Commitment Letter”) and related fee letters, which shall cause replace the existing Commitment Letter and any existing Fee Letter; provided that any such Alternate Financing shall not (i) obligate the Company prior to the Closing as a surety, guarantor or indemnitor or to extend credit to any person or (ii) impose any new or additional condition or otherwise expand any condition to draw and other terms that would reasonably be expected to affect the availability thereof at the Closing. Parent shall promptly provide a true and complete copy of such New Commitment Letter and any related fee letter (as redacted to remove any fees, interest rates, “market flex” rights, and other economic terms, in each case that would not adversely affect the conditionality, enforceability, termination or aggregate principal amount of its Subsidiaries such alternative financing) in connection therewith to the Company. In the event a New Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall mean the financing contemplated by the Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Commitment Letter” shall be deemed to mean the New Commitment Letter and each of their respective Representatives any fee letter provided in connection therewith, (iii) any reference in this Agreement to providethe “Fee Letter” shall be deemed to include any fee or other letter relating to the New Commitment Letter to the extent then in effect, all cooperation as may and (iv) any references to “Debt Financing Documents” shall be reasonably required deemed to mean the definitive agreement with respect to the Equity Debt Financing or any debt financing or indebtedness of on the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase terms and conditions set forth in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)New Commitment Letter.
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.
Appears in 2 contracts
Sources: Merger Agreement (Flir Systems Inc), Merger Agreement (Teledyne Technologies Inc)
Financing. (a) Subject to the terms and conditions of this AgreementSection 7.07, each of RMT Parent shall, and Merger Sub shall cause its Affiliates to, use its reasonable best efforts to (i) cause the conditions and comply with the obligations that are set forth in the RMT Commitment Letter applicable to, and within the control of or that require the cooperation of, RMT Parent to be fulfilled (or waived, if deemed advisable by RMT Parent) in a timely fashion in accordance with its terms, (ii) maintain the RMT Commitment Letter in effect until the earlier of the initial funding of the RMT Financing or the date that the RMT Financing Agreements (as defined below) become effective, (iii) negotiate definitive agreements with respect thereto, on the terms and conditions contained therein (including the “market flex” provisions) or on such other terms that would not be prohibited by clauses (i) through (iv) of Section 7.07(d) (the “RMT Financing Agreements”) and (iv) if all conditions precedent under the RMT Commitment Letter or the RMT Financing Agreements have been satisfied, on the Closing Date, cause the RMT Lenders to fund the RMT Financing and RMT Borrower to consummate the Equity RMT Financing at Transactions if all conditions to Closing contained in Article VIII are, or prior on the Closing Date can reasonably be expected to be, satisfied or waived (by the applicable party that is the beneficiary of such condition). In the event any funds in the amounts set forth in the RMT Commitment Letter or the RMT Financing Agreements, or any portion thereof, become unavailable on the terms and conditions (including any applicable “flex” terms) contemplated in the RMT Commitment Letter or the RMT Financing Agreements, RMT Parent shall, and shall cause its Affiliates to use reasonable best efforts, subject to Section 7.07(d), to obtain promptly any such portion from alternative sources, including on terms materially no less favorable, in the aggregate, to RMT Parent than those set forth in the RMT Commitment Letter (in each case as determined in the reasonable discretion of RMT Parent), in an amount sufficient, when added to the Effective Timeportion of the RMT Financing that is available, to finance the RMT Financing Transactions (the “RMT Alternative Financing”) and provide promptly to GPC a copy of any new financing commitment letter and any associated fee letters (solely in the case of any administrative agent fee letter, redacted in a customary manner solely with respect to the fees payable and economic terms (other than covenants) that are confidential, none of which redacted provisions would reduce the aggregate principal amount of such RMT Alternative Financing, impose additional conditions with respect thereto, or otherwise affect the enforceability or availability of such RMT Alternative Financing) (collectively, the “Alternative RMT Commitment Letter”); provided that the terms of any such RMT Alternative Financing must be consistent with the Intended Tax Treatment, as reasonably determined by GPC. In the event any RMT Alternative Financing is obtained, notwithstanding anything herein to the contrary, any reference in this Agreement to “RMT Financing” shall include “RMT Alternative Financing,” any reference to “RMT Commitment Letter” shall include the “Alternative RMT Commitment Letter,” any reference to “RMT Lenders” shall include the financial institutions providing such RMT Alternative Financing, and any reference to “RMT Financing Agreements” shall include any definitive agreements with respect to the Alternative RMT Commitment Letter, and all obligations of RMT Parent pursuant to this Section 7.07 shall be applicable thereto to the same extent as RMT Parent’s obligations with respect to the RMT Financing. For the avoidance of doubt, if the Marketing Period has ended, the RMT Financing is available, and all conditions to the Closing set forth in Article VIII have been satisfied or waived or will be satisfied or waived at the Closing, RMT Parent shall take all actions within its control reasonably necessary to allow RMT Borrower to incur the indebtedness provided under the RMT Financing to consummate the RMT Financing Transactions.
(b) Subject to the terms and conditions of this Section 7.07, GPC and SpinCo shall, and shall cause their respective Affiliates to, use reasonable best efforts to (i) cause the conditions and comply with the obligations that are set forth in the SpinCo Commitment Letter applicable to, and within the control of or that require the cooperation of, GPC or SpinCo to be fulfilled (or waived, if deemed advisable by GPC or SpinCo) in a timely fashion in accordance with its terms, (ii) maintain the SpinCo Commitment Letter in effect until the earlier of the initial funding of the SpinCo Financing or the date that the SpinCo Financing Agreements (as defined below) become effective, (iii) negotiate definitive agreements with respect thereto, on terms and conditions acceptable to RMT Parent and contained therein (including the “market flex” provisions) or on such other terms acceptable to RMT Parent that would not be prohibited by Section 7.07(e) (the “SpinCo Financing Agreements” and, together with the RMT Financing Agreements, the “Financing Agreements”) and (iv) if all conditions precedent under the SpinCo Commitment Letter or the SpinCo Financing Agreements have been satisfied, cause the SpinCo Lenders to fund the SpinCo Financing prior to or substantially contemporaneously with the Distribution and to consummate the SpinCo Financing Transactions if all conditions to Closing contained in Article VIII are, or, on the Closing Date can reasonably be expected to be, satisfied or waived (by the applicable party that is the beneficiary of such condition). In the event any funds in the amounts set forth in the SpinCo Commitment Letter or the SpinCo Financing Agreements, or any portion thereof, become unavailable on the terms and conditions (including any applicable “flex” terms) contemplated in the SpinCo Commitment Letter or the SpinCo Financing Agreements, GPC and SpinCo shall, and shall cause their respective Affiliates to, in consultation with RMT Parent, use reasonable best efforts to cause SpinCo to obtain promptly any such portion from alternative sources, on terms acceptable to RMT Parent, in an amount sufficient, when added to the portion of the SpinCo Financing that is available, to finance the SpinCo Financing Transactions (the “SpinCo Alternative Financing” and, together with any RMT Alternative Financing, the “Alternative Financings” and each, an “Alternative Financing”) and provide promptly to RMT Parent a copy of any new financing commitment letter and any associated fee letters (the “Alternative SpinCo Commitment Letter”); provided that the terms of any such SpinCo Alternative Financing must be consistent with the Intended Tax Treatment, as reasonably determined by GPC. In the event SpinCo Alternative Financing is obtained, any reference in this Agreement to “SpinCo Financing” shall include “SpinCo Alternative Financing,” any reference to “SpinCo Commitment Letter” shall include the “Alternative SpinCo Commitment Letter,” any reference to “SpinCo Lenders” shall include the financial institutions providing such Alternative Financing, and any reference to “SpinCo Financing Agreements” shall include any definitive agreements with respect to the Alternative SpinCo Commitment Letter, and all obligations of GPC and SpinCo pursuant to this Section 7.07 shall be applicable thereto to the same extent as GPC’s and SpinCo’s obligations with respect to the SpinCo Financing. For the avoidance of doubt, if the SpinCo Financing is available and all conditions to the Closing set forth in Article VIII have been satisfied or waived or will be satisfied or waived at the Closing, SpinCo shall, and GPC shall cause SpinCo to, take all actions within its control reasonably necessary to cause SpinCo to incur the indebtedness provided under the SpinCo Commitment Letter or the SpinCo Financing Agreements to consummate the SpinCo Financing Transactions, including by executing and delivering to the SpinCo Lenders the SpinCo Financing Agreements and related certificates, instruments and documents contemplated thereby, which, in each case, shall be in form and substance satisfactory to RMT Parent.
(c) RMT Parent and GPC shall each give the Company other prompt written notice (i) upon becoming aware of any breach of any material provision breach (or threatened material breach) or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any New Sponsor Equity Commitment Letter material breach or termination of any New Sponsor Equity Commitment Letter default) by any party thereto to the Commitment Letters or the Financing Agreements, (ii) upon of the receipt of any written notice from of any party to a New Sponsor Equity Commitment Letter with respect to actual or threatened withdrawal, repudiation or termination of either Financing by any threatened breach of the Lenders, (iii) of the receipt of any written notice of any material provision dispute or disagreement between or among any of the parties to the Commitment Letters or the Financing Agreements, (iv) of any amendment or modification of, or waiver under, the Commitment Letters or the Financing Agreements to which such New Sponsor Equity Person (or its Affiliate) is a party or (v) if for any reason either believes in good faith that it or its Affiliates will not be able to timely obtain all or any portion of the RMT Financing or SpinCo Financing, as applicable, on the terms and conditions and in the manner or from the sources (including the RMT Alternative Financing and the SpinCo Alternative Financing, where applicable) contemplated by the RMT Commitment Letter or threatened termination of any such New Sponsor Equity the SpinCo Commitment Letter.
, as applicable, or the RMT Financing Agreements or the SpinCo Financing Agreements, as applicable. RMT Parent and GPC shall keep one another informed upon reasonable request and in reasonable detail, as soon as reasonably practicable (cbut in any event within three Business Days upon receipt of such reasonable request) Each party hereto shall provide, and shall cause each of its Subsidiaries and each the status of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing (or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (itheir Affiliate’s) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that arrange the Parent RMT Financing and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective TimeSpinCo Financing, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii)as applicable.
(d) The Company Notwithstanding anything to the contrary set forth herein, RMT Parent may amend, modify, replace, waive or change any provision in the RMT Commitment Letter or any of the RMT Financing Agreements; provided that any such amendment, modification, replacement, waiver or change must be consistent with the Intended Tax Treatment, as reasonably determined by GPC; provided, further, that RMT Parent shall use reasonable best efforts not permit or agree to obtainany such amendment, execute and deliver such documents modification, replacement, waiver or instruments as may change to be required for made to the Surviving Company’s due assumption ofRMT Commitment Letter or any of the RMT Financing Agreements without obtaining the prior written consent of GPC, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including that would (i) customary closing certificates and other similar documents as may change, amend, expand or modify the conditions precedent set forth therein, or impose new or additional conditions, in each case in any manner that would reasonably be reasonably requested by the trustee of the 2022 Notes expected to prevent or as may be required under the Facility Agreement in connection with materially delay the consummation of the TransactionsRMT Financing, including the Merger and (ii) customary legal opinions reduce the aggregate cash amount of the RMT Financing such that the aggregate funds that would be available to RMT Parent upon the closing of the RMT Financing would not be sufficient to fund the RMT Financing Transactions, (iii) decrease the aggregate cash amount of the RMT Financing as are required by set forth in the 2022 Indenture RMT Commitment Letter or the Facility Agreement RMT Financing Agreements such that such aggregate amount is less than the aggregate cash amount to be funded upon the closing thereof as set forth in connection with the consummation RMT Commitment Letter as of the Transactionsdate hereof or (iv) amend or modify any other term or provision in a manner that would reasonably be expected to prevent, materially delay or materially impair the ability of RMT Parent and Merger Sub to consummate the transactions contemplated by this Agreement or adversely impact, in any material respect, the ability of RMT Parent to enforce its rights against the other parties to the RMT Commitment Letter or any of the RMT Financing Agreements. Notwithstanding anything to the contrary set forth herein, RMT Parent may modify, supplement, or amend the RMT Commitment Letter or any of the RMT Financing Agreements, (x) to add lead arrangers, bookrunners, syndication agents, documentation agents, lenders or similar entities that have not executed the RMT Commitment Letter as of the date hereof and (y) to implement or exercise any market flex provisions provided in, the RMT Commitment Letter as in effect as of the date hereof or, subject to Section 7.07(a), as in effect as of the date that an Alternative RMT Commitment Letter becomes effective. In such event, the term “RMT Commitment Letter” as used herein shall be deemed to include the new or amended commitment letters (including all exhibits, schedules, and attachments thereto) and fee letters entered into in accordance with this Section 7.07(d), the Mergerterm “RMT Financing” as used herein shall be deemed to include any substitute financing obtained in accordance with this Section 7.07(d), and the term “RMT Financing Agreements” shall be deemed to include the new or amended definitive agreements with respect to the RMT Financing entered into in accordance with this Section 7.07(d); provided, however, that in the event any portion of the RMT Financing becomes unavailable on the terms and conditions contemplated in the RMT Commitment Letter or the RMT Financing Agreements, the second sentence of Section 7.07(a), and not this Section 7.07(d), shall govern with respect to the terms of any replacement financing to be obtained after any portion of the RMT Financing becomes unavailable as described therein. Promptly after the effectiveness thereof, RMT Parent shall deliver to GPC true and correct copies of all amendments, modifications, replacements, waivers and changes to the RMT Commitment Letter and, after the effective date thereof, the RMT Financing Agreements.
Appears in 2 contracts
Sources: Merger Agreement (Rhino SpinCo, Inc.), Merger Agreement (Genuine Parts Co)
Financing. (a) Subject Ultimate Parent shall take, or cause to be taken, all actions and do, or cause to be done, all things necessary or advisable to arrange the Debt Financing on the terms and conditions of this Agreement, each of Parent described in the Debt Commitment Letter and Merger Sub shall use its reasonable best efforts to consummate the Equity Debt Financing at or prior on the Closing Date. Such actions shall include, but not be limited to, the following: (i) maintaining in effect the Debt Commitment Letter; (ii) participation by senior management of Ultimate Parent in, and assistance with, the preparation of rating agency presentations and meetings with rating agencies; (iii) satisfying on a timely basis all Financing Conditions applicable to Ultimate Parent in the Debt Commitment Letter that are within its control; (iv) negotiating, executing and delivering Debt Financing Documents that reflect the terms contained in the Debt Commitment Letter (to the Effective Time.
extent required to consummate the transactions contemplated hereunder) (bincluding any “market flex” provisions related thereto) or on such other terms acceptable to Ultimate Parent and its financings sources; and (v) in the event that the conditions set forth in Section 6.1 and Section 6.2 and the Financing Conditions have been satisfied or, upon funding, would be satisfied, cause the financing providers to fund the full amount of the Debt Financing to the extent the proceeds thereof are needed to fund transactions contemplated hereunder. Ultimate Parent shall give the Company reasonably prompt notice (i) upon becoming aware of any breach, repudiation or threatened (in writing) breach or repudiation by any party to the Debt Commitment Letter of which Ultimate Parent or its Affiliates becomes aware. Without limiting Ultimate Parent’s other obligations under this Section 5.15, if a Financing Failure Event occurs, Ultimate Parent shall (A) promptly notify the Company of such Financing Failure Event and the reasons therefor, (B) use commercially reasonable efforts to obtain alternative financing from alternative financing sources (on terms not materially less favorable to Ultimate Parent (as determined in the reasonable judgment of Ultimate Parent, taking into account any material provision “market flex” provisions related to the Debt Commitment Letter) than those contained in the Debt Commitment Letter), in an amount sufficient, together with other financial resources of Ultimate Parent, Parent and Merger Sub, to pay the aggregate Merger Consideration, Option Payments and RSU Payments pursuant to this Agreement and consummate the transactions contemplated by this Agreement, as promptly as practicable following the occurrence of such event, and (C) if and when obtained, provide the Company with a true and complete copy of a new financing commitment that provides for such alternative financing. Ultimate Parent shall have the right from time to time to amend, modify, supplement, restate, assign, substitute or replace any New Sponsor Equity of the Debt Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon Debt Financing Document from the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of same and/or an alternative Financing Source; provided, that any such New Sponsor Equity Commitment Letter.
(c) Each party hereto amendment, modification, supplement, restatement, assignment, substitution or replacement shall providenot, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to without the Equity Financing or any debt financing or indebtedness prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed) (1) add any conditions precedent or other contingencies related to the funding of the Debt Financing on the Closing Date (beyond the Financing Conditions) that would result in connection with the conditions to such funding being materially less likely to be satisfied or (2) be reasonably expected to impede or delay in any material respect the consummation of the TransactionsMerger and the other transactions contemplated by this Agreement. For purposes of this Section 5.15 and Section 5.16 below, references to “Debt Financing” shall include the financing contemplated by the Debt Commitment Letter as permitted to be amended, modified, supplemented, restated, assigned, substituted or replaced by this Section 5.15 (including in the event of a Financing Failure Event) and references to “Debt Financing Documents” or “Debt Commitment Letter” shall include such documents as permitted to be amended, modified, supplemented, restated, assigned, substituted or replaced by this Section 5.15 (i) including in the event of a Financing Failure Event). Ultimate Parent shall be permitted to reduce the amount of Debt Financing under the Debt Commitment Letter in its reasonable discretion, provided, that Ultimate Parent shall not reduce the Debt Financing to an amount committed below the amount that is required, together with other financial resources of Ultimate Parent, Parent and Merger Sub including cash, cash equivalents and marketable securities of Ultimate Parent, Parent, Merger Sub, the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts Subsidiaries on the Closing Date, to obtain, execute and deliver such documents or instruments as may be required for consummate the Surviving Company’s due assumption ofMerger on the terms contemplated by this Agreement, and succession toprovided, further, that such reduction shall not (I) add any conditions precedent or other contingencies related to the Company’s obligations under funding of the 2022 Indenture and Debt Financing on the Facility Agreement, including Closing Date (ibeyond the Financing Conditions) customary closing certificates and other similar documents as may that would result in the conditions to such funding being materially less likely to be satisfied or (II) be reasonably requested by the trustee of the 2022 Notes expected to impede or as may be required under the Facility Agreement delay in connection with any material respect the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required the other transactions contemplated by this Agreement. For the avoidance of doubt, the syndication of the Debt Financing to the extent permitted by the 2022 Indenture Debt Commitment Letter and subject to the conditions contained therein shall not be deemed to violate Ultimate Parent’s or Parent’s obligations under this Agreement. Ultimate Parent shall consult with and keep the Facility Agreement Company informed in connection with the consummation reasonable detail of the Transactions, including status of Ultimate Parent’s efforts to arrange the MergerDebt Financing.
Appears in 2 contracts
Sources: Merger Agreement (St Jude Medical Inc), Merger Agreement (Thoratec Corp)
Financing. (a) Subject Prior to the Closing, Parent and Merger Sub shall use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or desirable to arrange and consummate the Financing on terms and conditions no less favorable to Parent and Merger Sub than those described in or contemplated by the Commitment Letter and the Fee Letter (including any “market flex” provisions that are contained in the Fee Letter), including using reasonable best efforts to (i) satisfy on a timely basis (taking into account the anticipated timing of this Agreementthe Marketing Period) all conditions applicable to Parent or Merger Sub set forth in the Commitment Letter and the Fee Letter (including definitive agreements related thereto) that are within its control, each including the payment of any commitment, engagement or placement fees required as a condition to the Financing, (ii) maintain in effect the Commitment Letter (subject to Parent’s right to amend, modify, supplement, restate, assign, substitute or replace the Commitment Letter in accordance herewith), comply with its obligations pursuant to the Commitment Letter, diligently enforce their rights under the Commitment Letter and, with respect to the Commitment Letter, negotiate and enter into definitive agreements with respect thereto on terms and conditions no less favorable to Parent and Merger Sub than those described in or contemplated in the Commitment Letter and the Fee Letter (including any “market flex” provisions contained in the Fee Letter), (iii) consummate the Financing at or prior to the Closing, (iv) ensure the participation by a Representative of Parent and Merger Sub in, and assistance by Representatives of Parent and Merger Sub with, the preparation of rating agency presentations, meetings with ratings agencies and meetings with prospective lenders and (v) comply with Parent’s obligations under the Commitment Letter and the Fee Letter. If funds in the amounts and on the terms set forth in a Commitment Letter become unavailable to Parent or Merger Sub on the terms and conditions (including any “market flex” provisions contained in the Fee Letter) contemplated in the Commitment Letter and the Fee Letter (other than as a result of the Company’s breach of this Agreement, or if the Company’s failure to perform would be the sole cause of the conditions set forth in Section 7.01 or Section 7.02 not to be satisfied), Parent and Merger Sub shall promptly notify the Company of such fact and shall use their reasonable best efforts to obtain as promptly as practicable alternative debt financing (the “Alternative Financing”) in amounts, when added to any Financing remaining available to Parent, sufficient to consummate the Transactions, including, for the avoidance of doubt, payment of the Required Amount and that would not (i) include any conditions precedent to the Financing that are not contained in the Commitment Letter and the Fee Letter that would reasonably be expected to (1) make the funding of the Financing (or the satisfaction of the conditions to obtaining the Financing) less likely to occur or (2) materially delay or prevent the Closing and (ii) otherwise reasonably be expected to materially delay or prevent the Closing; provided that Parent and Merger Sub shall not be required to accept any Alternative Financing having terms and conditions (including “market flex” provisions) less favorable to Parent and Merger Sub than those in the Commitment Letter and the Fee Letter; provided, further, that if Parent and Merger Sub proceed with such Alternative Financing, Parent and Merger Sub shall be subject to the same obligations with respect to such Alternative Financing as set forth in this Section 6.09(a) with respect to the Financing, and all references in this Agreement to the “Financing”, “Commitment Letter” and “Fee Letter” (and other like terms in this Agreement) shall be deemed to also include such Alternative Financing, as applicable. In the event all conditions applicable to the Commitment Letter have been satisfied or waived, Parent shall use its reasonable best efforts to cause the Persons providing the Financing to fund such Financing required to consummate the Equity Financing at or prior to Transactions on the Effective TimeClosing Date.
(b) Upon written request of the Company, Parent shall keep the Company apprised (as promptly as possible, and in any event within forty-eight (48) hours) of material developments relating to the Financing. Parent shall give the Company prompt written notice of any material adverse change with respect to the Financing. Without limiting the generality of the foregoing, Parent shall give the Company prompt written notice and, in any event, within forty-eight (48) hours, (i) upon becoming aware of any breach breach, default, termination or repudiation by any party to the Commitment Letter or definitive agreements related to the Financing of which Parent or Merger Sub becomes aware, (ii) of the receipt of (A) any written notice or (B) other written communication, in each case from any Lender Related Party with respect to any (1) actual breach, default, termination or repudiation by any party to the Commitment Letter or definitive agreements related to the Financing of any provisions of the Commitment Letter or definitive agreements related to the Financing of which Parent or Merger Sub becomes aware or (2) material dispute or disagreement between or among any parties to the Commitment Letter or definitive agreements of which Parent becomes aware related to the Financing with respect to the obligation to fund any of the Financing or the amount of the Financing to be funded at the Closing and (iii) if at any time for any reason Parent believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions, in the manner or from the sources contemplated by the Commitment Letter or definitive agreements related to the Financing such that it would not have amounts sufficient to consummate the Merger and the other Transactions, including payment of the Required Amount. As soon as reasonably practicable, but in any event within forty-eight (48) hours of the date that the Company delivers to Parent a written request, Parent shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause (i), (ii) or (iii) of the immediately preceding sentence. Parent shall not replace, amend, supplement, modify or waive the Commitment Letter or any provision of any New Sponsor Equity fee letter relating to the Commitment Letter (it being understood that the existence or termination exercise of “market flex” provisions contained in the Fee Letter shall not constitute a replacement, amendment, supplement, modification or waiver of the Commitment Letter), without the Company’s prior written consent (such consent not to be unreasonably withheld, or conditioned or delayed) if such replacement, amendment, supplement, modification or waiver (x) reduces the aggregate amount of the Financing (including by changing the amount of fees to be paid or original issue discount of the Financing or similar fees) such that Parent would not have amounts sufficient to consummate the Merger and the other Transactions, including payment of the Required Amount, (y) amends the conditions precedent to the Financing in a manner that adds additional conditions precedent to the Financing, or otherwise expands, amends or modifies any New Sponsor Equity of the conditions precedent to the availability of the Financing, in each case, in a manner that would reasonably be expected to (1) make the funding of the Financing (or the satisfaction of the conditions to obtaining the Financing) less likely to occur or (2) materially delay or prevent the Closing or (z) adversely impacts the ability of Parent or Merger Sub to enforce its rights against the other parties to the Commitment Letter by any party thereto (as it may be replaced, amended, supplemented, modified or waived in accordance with this Section 6.09); provided that Parent and Merger Sub may replace, amend, supplement or modify the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities (iior titles with respect to such entities) upon that have not executed the receipt Commitment Letter as of any written notice from any the date of this Agreement (it being understood that the aggregate commitments of the lenders party to a New Sponsor Equity the Commitment Letter prior to such amendment, supplement or modification may be reduced in the amount of such additional party’s commitments) (provided that, except as provided for in the Commitment Letter with respect to any threatened breach Additional Committing Lenders (as defined in the Commitment Letter), no such addition shall relieve the original Committed Lenders of their obligations under the Commitment Letter prior to the funding of the Financing). Parent shall promptly provide to the Company true and complete copies of any material provision commitment letter and fee letter (which, in the case of such New Sponsor Equity a fee letter, may redact Permissible Redacted Terms) associated with a replacement Financing or Alternative Financing as well as any amendment, supplement, modification or waiver of any Commitment Letter or threatened termination any related fee letter (which, in the case of any such New Sponsor Equity Commitment Lettera fee letter, may redact Permissible Redacted Terms) that is permitted hereunder.
(c) Each party hereto Prior to the Closing, the Company shall use its reasonable best efforts to provide, and shall to cause each of its the Company Subsidiaries and each of its and their respective Representatives to use their reasonable best efforts to provide, to Parent and Merger Sub, in each case at Parent’s sole cost and expense (subject to the expense reimbursement provision in the last sentence of this Section 6.09(c)), such cooperation as is customary and reasonably requested by Parent in connection with the arrangement of the Financing or any customary high-yield non-convertible bonds or equity being issued in lieu of all cooperation or any portion of the Debt Financing, including by:
(i) assisting in preparation for and participating (including causing the Company’s and Company Subsidiaries’ management teams with appropriate seniority and expertise to participate) in a reasonable number of investor and lender meetings (including a reasonable and limited number of customary one on one meetings and calls that are requested in advance with or by the parties acting as lead arrangers, bookrunners or agents for, and prospective lenders and purchasers of, the Financing), lender due diligence presentations, drafting sessions, road shows and presentations, including sessions with rating agencies in connection with the Financing or any customary high-yield non-convertible bonds being issued in lieu of all or any portion of the Financing at reasonable times and locations mutually agreed, and assisting Parent in obtaining ratings in connection with the Financing or any customary high-yield non-convertible bonds being issued in lieu of all or any portion of the Financing;
(ii) assisting Parent, Merger Sub and the Lender Related Parties with the preparation by Parent, Merger Sub and the Lender Related Parties of materials for rating agency presentations, lender presentations, high-yield road show presentations and offering memoranda, bridge teasers, private placement memoranda, bank information memoranda and similar marketing documents required in connection with the Financing or any customary high-yield non-convertible bonds or equity in lieu of all or any portion of the Financing; provided that (x) the Company’s obligation to provide information for such materials shall be limited to information about the Company and the Company Subsidiaries and (y) Parent and Merger Sub shall be solely responsible for the preparation of pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financial information (collectively, the “Debt Marketing Materials”), including (A) furnishing business and financial projections with respect to the Company on a consolidated basis reasonably requested by Parent or Merger Sub and (B) furnishing records, data or other information with respect to the Company and the Company Subsidiaries necessary to support any statistical information or claims relating to the Company and the Company Subsidiaries appearing in the Debt Marketing Materials;
(iii) executing and delivering as of (but not prior to) the Closing any pledge and security documents, other definitive financing documents for the Financing or any customary high-yield non-convertible bonds or equity in lieu of all or any portion of the Financing, or other certificates or documents and backup therefor and for legal opinions as may be reasonably required with respect requested by Parent (including any certificate or other document reasonably requested by Parent as backup for legal opinions to the Equity Financing or any debt financing or indebtedness of the Company be provided in connection with the consummation transactions contemplated by Section 6.12) and otherwise reasonably facilitating the granting of guarantees and the Transactions, including (i) the Company obtaining approval pledging of collateral; provided that (A) an increase in the size none of the Company Board to such number as is requested documents or certificates shall be executed and/or delivered except in writing by Parent and connection with the Closing, (B) the election to effectiveness thereof shall be conditioned upon, or become operative after, the Company Board occurrence of the individuals who will serve as directors Closing (in the case of each of the Surviving Company, in each case of foregoing clauses (A) and (B), effective as other than the execution of immediately prior to the Effective Time, and (ii1) the Company using commercially reasonable efforts to ensure that authorization letters set forth in Section 6.09(c)(vi) below, (2) the Parent and representation letters required by the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it Company’s auditors in connection with the Company’s compliance delivery of “comfort letters” set forth in Section 6.09(c)(ix) below, (3) the prepayment, termination or redemption notices set forth in Section 6.09(c)(v) below, (4) a customary solicitation agent agreement in connection with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents any consent solicitation or instruments as may be required for change of control tender offer in respect of the Surviving Company’s due assumption of, and succession to2021 Notes, the Company’s obligations under 2023 Notes or the 2022 Indenture and 2025 Notes set forth in Section 6.12, (5) a customary dealer manager agreement in connection with any tender offer, exchange offer or change of control tender offer in respect of the Facility Agreement2021 Notes, including the 2023 Notes or the 2025 Notes set forth in Section 6.12, (i6) any certificate or other document reasonably requested by Parent as backup for legal opinions to be provided in connection with the transactions contemplated by Section 6.12, (7) customary ancillary agreements and closing certificates deliverables for any consent solicitation, tender offer, exchange offer, change of control tender offer, optional redemption, satisfaction and other similar documents as may be discharge or defeasance in respect of the 2021 Notes, the 2023 Notes or the 2025 Notes set forth in Section 6.12, (8) any approvals or authorizations by the board of directors (or equivalent bodies) of the Company or any Company Subsidiary in connection with any consent solicitation, tender offer, exchange offer, change of control tender offer, optional redemption, satisfaction and discharge, defeasance or designation of restricted subsidiaries in respect of the 2021 Notes, the 2023 Notes or the 2025 Notes set forth in Section 6.12 and (9) any documentation reasonably requested by the trustee under the 2023 Indenture or the 20▇▇ ▇▇▇▇▇▇▇▇▇ ▇n connection with any designation of restricted subsidiaries set forth in Section 6.12) and (C) except to the extent subject to the expense reimbursement provision in the last sentence of this Section 6.09(c), no liability shall be imposed on the Company or any Company Subsidiary or any of their respective officers or employees involved prior to the Closing Date;
(iv) providing Parent and the Lender Related Parties promptly, and in any event no later than three (3) Business Days prior to the Closing Date, with all documentation and other information about the Company and the Company Subsidiaries as is reasonably required and which any lender, provider or arranger of any Financing or any customary high-yield non-convertible bonds issued in lieu of all or any portion of the 2022 Notes Financing (or as may be required under any person similarly situated) has reasonably requested at least ten (10) Business Days prior to the Facility Agreement Closing Date in connection with the consummation such Financing or any customary high-yield non-convertible bonds in lieu of all or any portion of the TransactionsFinancing under applicable “know your customer” and anti-money laundering rules and regulations, including the Merger PATRIOT Act and the CDD Rule;
(iiv) customary legal opinions as are required by delivering notices of prepayment, termination or redemption within the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.time periods
Appears in 2 contracts
Sources: Merger Agreement (Wesco International Inc), Merger Agreement (Wesco International Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, each Each of Parent and Merger Sub shall use (and cause their Affiliates to use) its reasonable best efforts to obtain the Financing on the terms and conditions described in the Financing Commitments as promptly as practicable, including using its reasonable best efforts (i) to negotiate and finalize definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitments, (ii) to satisfy on a timely basis all conditions applicable to Parent and Merger Sub set forth in such definitive agreements that are within either of their control or influence and (iii) to comply with its obligations under the Financing Commitments and consummate the Equity Financing at or prior no later than the Closing (subject to the Effective Time.
(b) amendment and replacement rights described herein). Parent shall give the Company prompt notice (i) upon becoming aware of any material breach by any party of the Financing Commitments or any termination of the Financing Commitments. Each of Parent, Merger Sub and the Company shall refrain (and shall use their reasonable best efforts to cause their Affiliates to refrain) from knowingly taking, directly or indirectly, any action that would reasonably be expected to result in a failure or any or the conditions contained in the Financing Commitments or in any definitive agreement related to the Financing. Parent shall keep the Company informed on a reasonable basis and in reasonable detail of material developments relating to the Financing and the status of its efforts to arrange the Financing. Parent shall not permit any amendment or modification to be made to, or any waiver of any material provision or remedy under, the Financing Commitments or the definitive agreements related to the Financing if such amendment, modification, waiver or remedy reduces the aggregate amount of the Financing available, amends the conditions to the drawdown of the Financing, adds any condition to funding, or would reasonably be expected to adversely impact or delay in any material respect the ability of Parent and Merger Sub to consummate the transactions contemplated hereby or materially reduce the likelihood of the consummation of the transactions contemplated hereby or materially reduce the likelihood of any New Sponsor Equity Commitment Letter conditions to funding being satisfied, without first obtaining the Company’s prior written consent. Subject to the terms and conditions contained herein and satisfaction of the Tender Offer Conditions, in the case of the Offer, and the conditions set forth in Article VII, in the case of the Merger, in the event that all conditions to the Financing Commitments (other than, in connection with the Debt Financing, the availability or termination funding of any New Sponsor of the Equity Commitment Letter by Financing) have been satisfied. Parent shall draw down on the Financing required to consummate the Offer on the Acceptance Date and the Merger on the Closing Date. If any party thereto portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, or (ii) upon the Parent becomes aware of any event or circumstance that makes receipt of any written notice portion of the Financing unlikely to occur in the manner and from any party the sources contemplated in the Financing Commitments, Parent shall promptly notify the Company and shall use its reasonable best efforts to a New Sponsor Equity Commitment Letter with respect arrange to any threatened breach of any material provision obtain alternative financing from alternative sources on terms no less beneficial and in an amount sufficient to consummate the transactions contemplated by this Agreement as promptly as practicable following the occurrence of such New Sponsor Equity Commitment Letter or threatened termination event but in no event later than the End Date. Parent shall deliver to the Company true and complete copies of all definitive agreements pursuant to which any such New Sponsor Equity Commitment Letteralternative source shall have committed to provide Parent and Merger Sub with any portion of the Financing. Parent and Merger Sub acknowledge and agree that their respective obligations to consummate the Agreement are not conditioned or contingent upon receipt of the Financing.
(cb) Each party hereto shall provide, The Company will and shall will cause each of its Subsidiaries to and each of will use its reasonable best efforts to cause its and their respective Representatives to provide, provide all cooperation reasonably requested by Parent in connection with the arrangement of the Financing (to the extent such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), including (i) participation in a reasonable number of meetings in connection with the Financing (including due diligence sessions and meetings with ratings agencies) on reasonable advance notice, (ii) furnishing Parent and its financing sources with the financial information required to be provided pursuant to Section 6.12(a) hereof when and as required thereby, (iii) assisting Parent and its financing sources in the preparation of (A) any offering document (provided that any such document need not be issued by the Company or any of its Subsidiaries), (B) materials for rating agency presentations, (iv) reasonably cooperating with the marketing efforts of Parent and its financing sources, (v) forming new direct or indirect Subsidiaries, (vi) cooperating in the preparation of, and providing and executing (or using reasonable efforts to obtain from its advisors), documents as may reasonably be requested by Parent (including any underwriting or placement agreements, pledge and security documents, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably required requested by Parent (including a certificate of the Chief Financial Officer of the Company with respect to solvency matters)) and otherwise reasonably facilitating, to the Equity Financing or any debt financing or extent reasonably requested by Parent, the pledging of collateral (including cooperation, to the extent reasonably requested by Parent, in connection with the pay-off of existing indebtedness and the release of related Liens); provided, however, that no obligation of the Company or any of its Subsidiaries under any such certificate, document or instrument (other than the representation letter referred to above) shall be effective until the Effective Time, and (vii) taking all actions to the extent reasonably requested by Parent necessary to (A) permit the prospective lenders involved in the Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, and (viii) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately Financing prior to the Effective Acceptance Time. The foregoing notwithstanding, (x) prior to the New Directors Time, and (ii) the Company using commercially reasonable efforts no Pre-Acceptance Date Director shall be required to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies take any action with respect to the extent requested by Parent. Neither foregoing and neither the Company nor any of its Subsidiaries shall be obligated to take any action that requires action or approval by the Pre-Acceptance Date Directors prior to the New Directors Time, (xy) no obligation of the Company or any of its Subsidiaries or Representatives under any agreement, certificate, document or instrument relating to the Financing and executed or delivered pursuant to this Section 6.11(b) shall be effective until the Effective Time, and (z) none of the Company or any of its Subsidiaries shall be required to pay any commitment or other similar fee or incur any other cost or expense (other than reasonable out-of-pocket costs, which shall be reimbursed by Parent pursuant to this Section 6.11(b)) prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Acceptance Time. If this Agreement is terminated in accordance with its terms prior to Parent shall, promptly upon request by the occurrence of the Effective TimeCompany, Parent shall promptly reimburse the Company for any all reasonable and documented out-of-pocket costs incurred by it the Company or its Subsidiaries in connection with such cooperation and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for and against any and all losses suffered or incurred by them in connection with the Company’s compliance with Section 6.07(c)(i) through arrangement of the Debt Financing and any information utilized in connection therewith (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested than information provided by the trustee of Company or its Subsidiaries). All nonpublic or otherwise confidential information regarding the 2022 Notes Company obtained by Parent, Merger Sub, their Representatives or as may their financing sources pursuant to this Section 6.11 shall be required under the Facility Agreement kept confidential in connection accordance with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the MergerConfidentiality Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Stealth Acquisition Corp.), Merger Agreement (Safenet Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to consummate the Equity Financing at or prior to the Effective Time.
(b) Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or (ii) upon the receipt of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provideshall, and shall cause each of its Subsidiaries and each of their respective Representatives to, use its reasonable best efforts to providetake, or cause to be taken, all cooperation as may actions and to do, or cause to be reasonably required done, all things necessary, proper or advisable to arrange and consummate the Financing on the terms and conditions described in or contemplated by the Commitment Papers (including any “flex” provisions) to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company ABL Credit Agreement and the Senior Secured Indenture and to pay cash in lieu of fractional shares in accordance with Section 4.2(f), including using reasonable best efforts to (i) maintain in effect the Commitment Papers, (ii) satisfy (or, if determined advisable by Parent in its reasonable discretion, obtain the waiver of) on or prior to the Closing Date all conditions to funding and availability of the Financing contained in the Commitment Papers and such definitive agreements for the Financing to be entered into pursuant thereto, in each case, that are within the control of Parent, (iii) negotiate and enter into definitive agreements with respect to the Equity Financing contemplated by the Commitment Papers on terms and conditions not materially less favorable to Parent, taken as a whole, than those described in the Commitment Papers (including any “flex” provisions contained therein) on or prior to the Closing Date, (iv) enforce its rights under the Commitment Papers and (v) in the event that all conditions to funding and availability of the Financing contained in the Commitment Papers have been satisfied or waived, consummate the Financing contemplated by the Commitment Papers. In the event any debt financing or indebtedness portion of the Financing contemplated by the Commitment Papers becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the Commitment Papers for any reason and such portion is necessary to refinance in full all amounts outstanding under the Company ABL Credit Agreement and the Senior Secured Indenture, to pay cash in lieu of fractional shares in accordance with Section 4.2(f) and to pay the fees and expenses relating to the Merger and the Financing (A) Parent shall promptly notify the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective TimeParent shall, and (ii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any shall cause each of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with to, use its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute as promptly as practicable following the occurrence of such event, alternative financing for any such portion from alternative sources (the “Alternative Financing”) in an amount not less than such unavailable and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, necessary funds and succession to, the Company’s obligations under the 2022 Indenture which (1) does not involve terms and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested by the trustee of the 2022 Notes or as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Merger.conditions that,
Appears in 2 contracts
Sources: Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Cleveland-Cliffs Inc.)
Financing. (a) Subject Parent shall use, and shall cause its subsidiaries to use, their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the proceeds of the Financing on the terms and conditions of this Agreement(including any “flex” provisions) described in the Debt Commitment Letters, each of Parent including executing and Merger Sub shall use delivering all such documents and instruments as may be reasonably required thereunder and using (and causing its subsidiaries to use) their respective reasonable best efforts to:
(i) comply with and maintain in effect the Financing and the Debt Commitment Letters;
(ii) negotiate and enter into definitive financing agreements with respect to consummate the Equity Financing at on the terms and conditions contained in the Debt Commitment Letters (the “Financing Agreements”);
(iii) satisfy, or cause their respective Representatives to satisfy, as promptly as practicable and on a timely basis all conditions to the Financing contemplated by the Debt Commitment Letters that are within its control (including by paying any commitment fees or other fees or deposits required by any fee letters relating to the Debt Commitment Letters);
(iv) comply with its obligations under the Debt Commitment Letters to the extent the failure to comply with such obligations would adversely impact the amount or timing of the Financing (taking into account the expected timing of the Marketing Period) or the availability of the Financing prior to the Effective Offer Acceptance Time;
(v) enforce its rights under the Debt Commitment Letters to the extent that the failure to enforce would adversely impact the amount or timing of the Financing (taking into account the expected timing of the Marketing Period) or the availability of the Financing at the Offer Acceptance Time; and
(vi) cause the Financing Sources and any other Persons providing Financing to fund the Financing no later than the Offer Acceptance Time.
(b) Parent shall give not agree to or permit any amendment, supplement, termination, modification or replacement of, or grant any waiver of, any condition, remedy or other provision under any Debt Commitment Letter or Financing Agreement without the prior written consent of the Company prompt notice if such amendment, supplement, termination, modification, replacement or waiver would or would reasonably be expected to (i) upon becoming aware reduce the aggregate amount of any breach the Financing from that contemplated by the Debt Commitment Letters delivered as of any material provision of any New Sponsor Equity Commitment Letter or termination of any New Sponsor Equity Commitment Letter by any party thereto or the date hereof to an amount such that the transactions contemplated hereby could not be consummated, (ii) upon impose any new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of any written notice from any party to the Financing in a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity Commitment Letter.
(c) Each party hereto shall provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of the Company in connection with the consummation of the Transactions, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially reasonable efforts to ensure manner that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall would (x) be required to pay any commitment delay or similar fee prior to prevent the Effective Time Offer or (y) be required make the funding of any portion of the Financing (or satisfaction of any condition to commit obtaining any portion of the Financing) less likely to taking occur or (iii) adversely impact in any action that is not contingent upon material respect the Closing (including entry into any agreement) or would be effective prior ability of Parent to enforce its rights against the other parties to the Effective TimeDebt Commitment Letters or the Financing Agreements (it being understood and agreed that, in any event, Parent may amend the Debt Commitment Letters to add lenders, arrangers, bookrunners, agents, managers or similar entities that have not executed the Debt Commitment Letters as of the date of this Agreement). If this Agreement is terminated Upon any amendment, supplement, modification or replacement of, or waiver of, any Debt Commitment Letter in accordance with its terms prior to the occurrence of the Effective Timethis Section 6.14(b), Parent shall promptly reimburse deliver a copy thereof to the Company for any reasonable and documented out-of-pocket costs incurred by it references herein to “Debt Commitment Letters” shall include and mean such documents as amended, supplemented, modified, replaced or waived in connection with the Company’s compliance with this Section 6.07(c)(i) through (iii6.14(b).
(d) The Company shall use reasonable best efforts to obtain, execute and deliver such documents or instruments as may be required for the Surviving Company’s due assumption of, and succession to, references to “Financing” shall include and mean the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates and other similar documents as may be reasonably requested financing contemplated by the trustee of the 2022 Notes Debt Commitment Letters as amended, supplemented, modified, replaced or waived in compliance with this Section 6.14(b), as may be required under the Facility Agreement in connection with the consummation of the Transactions, including the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation of the Transactions, including the Mergerapplicable.
Appears in 2 contracts
Sources: Merger Agreement (IntraLinks Holdings, Inc.), Merger Agreement (Synchronoss Technologies Inc)
Financing. (a) Subject Each of Parent and Merger Sub shall use its reasonable best efforts to, and shall use its reasonable best efforts to cause each of its respective Affiliates and Representatives to, take all actions and do all things necessary, proper or advisable to obtain the net proceeds of the Financing, or any Substitute Financing, in each case, on the terms and subject only to the conditions expressly set forth in the Financing Commitment Letters (including any “market flex” provisions set forth in any Debt Letter) and subject to any modifications permitted by this Section 5.04 at or prior to the Closing Date, including (i) maintaining in effect the Financing Commitment Letters and complying with all of their respective obligations thereunder to the extent required as a condition to accessing such Financing, (ii) negotiating, entering into and delivering definitive agreements with respect to the Financing (the “Definitive Agreements”) on the terms contained in the Financing Commitment Letters (including any “market flex” provisions set forth in any Debt Letter) (or with other terms reasonably acceptable to Parent and without any Prohibited Modifications) and subject only to the conditions expressly set forth in the Financing Commitment Letters on the date of this Agreement, (iii) satisfying on a timely basis all conditions in the Financing Commitment Letters and the Definitive Agreements that are applicable to Parent or any of its Affiliates or Representatives that are within their control, (iv) if required under the Debt Letters, entering into amendments to the Definitive Agreements with respect to the Debt Financing to give effect to any “market flex” provisions contained in any Debt Letter and (v) subject to the satisfaction of the conditions set forth in Section 7.01 and Section 7.03 (other than those conditions to be satisfied substantially concurrently with the Closing), consummating, and obtaining the net proceeds of, the Financing no later than the Closing.
(b) In the event that all conditions set forth in Article VII have been satisfied or waived or, upon funding shall be satisfied or waived, each of Parent and Merger Sub shall use its reasonable best efforts to, and shall use its reasonable best efforts to cause each of their respective Affiliates and Representatives to, cause each applicable Person that is a party to any of the Financing Commitment Letters to fund the Financing in accordance with its terms on the Closing Date to the extent the proceeds thereof are required to pay the Required Amount and consummate the Equity Merger and the other transactions contemplated thereby. Each of Parent and Merger Sub shall not, and shall use its reasonable best efforts to cause its Affiliates and Representatives not to, take or refrain from taking, directly or indirectly, any action that would reasonably be expected to result in a failure of the Financing (other than as expressly provided by the Debt Letters in respect of the “Backstop Revolving Credit Facility” and the “Backstop L/C Facility” (as such terms are defined in the Debt Commitment Letter)) to be available and funded in the Required Amount at or prior to the Effective TimeClosing; provided that Parent shall be permitted to terminate commitments in respect of the “Backstop Term Loan Facility” (as such term is defined in the Debt Commitment Letter).
(bc) Upon reasonable request by the Company from time to time, Parent shall keep the Company reasonably informed on a current and timely basis of the status of Parent’s efforts to obtain the Financing and to satisfy the conditions thereof, including advising and updating the Company, in a reasonable level of detail, with respect to status, proposed closing date of the Financing and material terms of the Definitive Agreements and providing copies of substantially final drafts of the primary Definitive Agreements (including, with respect to the Debt Financing, the credit agreement) with sufficient time for the Company to review with its counsel (provided that any fee letter and any engagement letter for the placement of debt securities may be redacted solely as to fee amounts and other economic terms (including any such terms included in the “market flex”) that are customarily redacted in connection with similar financings and that could not adversely affect the conditionality, enforceability, amount, availability or termination of the Financing). Without limiting the generality of the foregoing, Parent shall give the Company prompt written notice (i) upon becoming aware of any breach or default (or alleged or purported breach or default), or any event or circumstance that (with or without notice, lapse of time or both) would reasonably be expected to give rise to any breach or default, by any party to any of the Financing Commitment Letters or Definitive Agreements, (ii) of any material termination or repudiation (or alleged or purported termination or repudiation) of any of the Financing Commitment Letters or Definitive Agreements, and (iii) if for any reason at any time Parent believes that it may not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitment Letters or any Definitive Agreement. Parent shall provide any information reasonably requested by the Company relating to any of the circumstances referred to in clauses (i), (ii) or (iii) of the immediately preceding sentence promptly after the Company makes any such request.
(d) Neither Parent nor Merger Sub shall, without the Company’s prior written consent: permit any amendment, supplement, modification, assignment, termination, replacement or waiver to be made to, or consent to any waiver of, any provision of or remedy under any of the Financing Commitment Letters or Definitive Agreements if such amendment, supplement, modification, termination, assignment, replacement or waiver would or would reasonably be expected to (1) reduce the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount) below the Required Amount (when taken together with other sources of funds immediately available to Parent (including additional equity commitments that will be funded at or prior to Closing)); provided that Parent shall be permitted to terminate commitments in respect of the “Backstop Term Loan Facility” (as such term is defined in the Debt Commitment Letter), (2) impose new or additional conditions to the Financing or otherwise expand, amend or modify any of the existing conditions to the Financing, (3) adversely impact the ability of Parent or Merger Sub to enforce its rights against any other party to any of the Financing Commitment Letters or Definitive Agreements or (4) otherwise expand, amend, modify or waive any provision of any New Sponsor Equity of the Financing Commitment Letters or Definitive Agreements in a manner that in any such case would or would reasonably be expected to prevent, delay or make less likely (A) the funding of the Financing in an amount no less than the Required Amount (or satisfaction of the conditions to the Financing) at or prior to the Closing or (B) the timely consummation of the Merger and the other transactions contemplated hereby (the effects described in clauses (1) through (4), the “Prohibited Modifications”); provided that Parent may amend the Debt Letters to add Debt Financing Entities that have not previously executed the Debt Letters as of the date of this Agreement without the prior written consent of the Company. In the event that any new debt or equity commitment letters or fee letters are entered into in accordance with any termination, amendment, replacement, supplement, modification or waiver of any Financing Commitment Letter or termination Definitive Agreement permitted pursuant to this Section 5.04(d), references to the “Financing,” “Debt Financing Parties,” “Definitive Agreements” and “Financing Commitment Letters” (and other like terms in this Agreement) shall be deemed to refer to the Financing as so terminated, amended, supplemented, modified, waived or replaced for all purposes of this Agreement and each such term shall be construed accordingly. Parent shall promptly deliver to the Company copies of any New Sponsor Equity Commitment Letter by any party thereto termination, amendment, supplement, modification, waiver or (ii) upon the receipt replacement of any written notice from any party to a New Sponsor Equity Commitment Letter with respect to any threatened breach of any material provision of such New Sponsor Equity Financing Commitment Letter or threatened Definitive Agreement and each other agreement entered into in connection therewith (provided that any fee letter may be redacted solely as to fee amounts and other economic terms (including any such terms included in the “market flex”) that are customarily redacted in connection with similar financings and that could not adversely affect the conditionality, enforceability, amount, availability or termination of any such New Sponsor Equity Commitment Letterthe Financing).
(ce) Each party hereto shall provideIf any portion of the Financing becomes, or is expected to become, unavailable for any reason (other than on account of Parent’s termination of commitments in respect of the “Backstop Term Loan Facility” (as such term is defined in the Debt Commitment Letter)), Parent shall, and shall cause each its Affiliates and relevant Representatives, as promptly as practicable following the occurrence of its Subsidiaries and each of their respective Representatives such event, to provide, all cooperation as may be reasonably required with respect to the Equity Financing or any debt financing or indebtedness of (i) notify the Company in connection with writing thereof and the consummation of the Transactionsreason therefor, including (i) the Company obtaining approval of (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) the election to the Company Board of the individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, and (ii) the Company using commercially use its reasonable best efforts to ensure that obtain substitute financing in an amount sufficient, when taken together with any available portion of the Financing, to enable Parent to consummate the Merger and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated other transactions contemplated hereby in accordance with its terms prior (including to pay the Required Amount) and which does not include any Prohibited Modification or condition to the occurrence consummation of such substitute financing that is more onerous in any significant respect than the conditions set forth in the Financing Commitment Letters as of the Effective Timedate of this Agreement (any such substitute financing, Parent shall promptly reimburse the Company for any reasonable “Substitute Financing”) and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use its reasonable best efforts to obtainobtain a new financing commitment letter that provides for such Substitute Financing and, execute promptly after execution thereof, deliver to the Company true, complete and deliver correct copies of the new commitment letter and all related fee letters (provided that any such documents or instruments as fee letter may be required for the Surviving Company’s due assumption of, and succession to, the Company’s obligations under the 2022 Indenture and the Facility Agreement, including (i) customary closing certificates redacted solely as to fee amounts and other similar documents as may be reasonably requested by economic terms (including any such terms included in the trustee of the 2022 Notes or as may be required under the Facility Agreement “market flex”) that are customarily redacted in connection with similar financings and that could not adversely affect the consummation conditionality, enforceability, amount, availability or termination of the TransactionsFinancing) and related definitive financing documents with respect to such Substitute Financing; provided, including however, that Parent shall not be required to obtain financing that includes terms and conditions materially less favorable (taking into account any “market flex” provisions) to Parent, relative to those in the Merger and (ii) customary legal opinions as are required by the 2022 Indenture or the Facility Agreement in connection with the consummation portion of the Transactions, including the Merger.Financing being replaced. Upon obtaining any
Appears in 2 contracts
Sources: Merger Agreement (Allete Inc), Merger Agreement (Allete Inc)
Financing. (a) Subject to From the terms and conditions date of this AgreementAgreement until the earlier of the First Parent Merger Effective Time or the termination of this Agreement in accordance with Article 7, each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions, and use reasonable best efforts to do, or cause to be done, all things reasonably necessary or advisable, to arrange and obtain the Debt Financing and to consummate the Equity Debt Financing at on or prior to the Effective TimeClosing Date to the extent required to pay the Required Amount (after taking into account any cash on hand, available lines of credit (including under Parent’s existing revolving credit facility) and other sources of funds available to Parent on the Closing Date). Such actions shall include using reasonable best efforts to: (i) comply with and maintain in effect the Debt Commitment Letter (subject to any amendment, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below); (ii) satisfy, or obtain a waiver thereof, on a timely basis all Financing Conditions to the extent within the control of Parent and its Affiliates; (iii) negotiate, execute and deliver Debt Financing Documents to the extent required to pay the Required Amount (after taking into account any cash on hand, available lines of credit (including under Parent’s existing revolving credit facility) and other sources of funds available to Parent on the Closing Date), which shall reflect the terms contained in the Debt Commitment Letter (including any “market flex” provisions (if any) related thereto) or on such other terms acceptable to Parent that would not constitute an Adverse Effect on Financing (as defined below) as compared to those set forth in the Debt Commitment Letter delivered to the Company on the date hereof; and (iv) in the event that the Financing Conditions have been satisfied or waived or, upon funding would be satisfied, consummate the Debt Financing (including by instructing the Debt Financing Sources to fund the Debt Financing in accordance with the Debt Commitment Letter, and enforcing Parent’s rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing) to the extent required to pay the Required Amount (after taking into account any cash on hand, available lines of credit (including under Parent’s existing revolving credit facility) and other sources of funds available to Parent on the Closing Date).
(b) From the date of this Agreement until the earlier of the First Parent Merger Effective Time or the termination of this Agreement in accordance with Article 7, Parent and its Affiliates shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of any New Sponsor Equity Commitment Letter breach, default or termination of any New Sponsor Equity Commitment Letter repudiation by any party thereto or (ii) upon to the receipt of any written notice from any party to a New Sponsor Equity Debt Commitment Letter with respect of which Parent or its Affiliates becomes aware. Parent shall keep the Company informed on a reasonably current basis upon request by the Company of the status of its efforts to any threatened breach of any material provision of such New Sponsor Equity Commitment Letter or threatened termination of any such New Sponsor Equity arrange the Debt Financing contemplated by the Debt Commitment Letter.
(c) Each party hereto shall provideIn the event all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter (including the flex provisions (if any)) (other than as a result of the Company’s breach of any provision of this Agreement or failure to satisfy the conditions set forth in Article 6, and shall cause each of its Subsidiaries and each of their respective Representatives to provide, all cooperation as may be reasonably required with respect to except where such unavailability is the Equity Financing or any debt financing or indebtedness result of the Company in connection with the consummation incurrence of the Transactionsany Permanent Financing (as defined below)), including then Parent shall (i) promptly notify the Company obtaining approval of thereof and the reasons therefor, (Aii) use reasonable best efforts to obtain Alternative Financing from the same or alternative Debt Financing Entities on terms and conditions, taken as a whole, no less favorable to Parent than as contemplated by the Debt Commitment Letter and not involving any conditions that would constitute an increase Adverse Effect on Financing as compared to those set forth in the size of the Company Board to such number as is requested in writing by Parent and (B) the election Debt Commitment Letter delivered to the Company Board on the date hereof, that, when taken together with the portion of the individuals who will serve as directors Debt Financing that remains available and any cash on hand, available lines of the Surviving Company, in each case of clauses credit (Aincluding under Parent’s existing revolving credit facility) and (B)other sources of funds available to Parent on the Closing Date, effective as of immediately prior is at least equal to the Effective TimeRequired Amount, as promptly as practicable following the occurrence of such event, and (iiiii) the Company using commercially reasonable efforts to ensure that the Parent and the Surviving Company benefit from the existing lending relationships of the Group Companies to the extent requested by Parent. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time or (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time. If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Company’s compliance with Section 6.07(c)(i) through (iii).
(d) The Company shall use reasonable best efforts to obtain, execute and, when obtained, provide the Company with a true, correct and deliver complete copy of, a new financing commitment that provides for such documents or instruments as Alternative Financing; provided that any provisions set forth in such new financing commitment relating to fees, pricing terms, “market flex” provisions (if any) and other terms that are customarily redacted (including any dates related thereto) may be required for redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the Surviving Company’s due assumption of, and succession to, aggregate principal amount of such Alternative Financing to be funded on the Company’s obligations under Closing Date or impose additional conditions precedent to the 2022 Indenture and funding of such Alternative Financing on the Facility Agreement, including Closing Date.
(id) customary closing certificates and other similar documents as may be reasonably requested by From the trustee date of this Agreement until the earlier of the 2022 Notes First Parent Merger Effective Time or as may the termination of this Agreement in accordance with Article 7, without the prior written consent of the Company (which shall not be required under unreasonably withheld, delayed or conditioned), Parent and its Affiliates shall not amend, modify, supplement, restate, assign, substitute or replace the Facility Agreement Debt Commitment Letter or any Debt Financing Document (except in connection with the consummation incurrence of other financing to replace such financing) if such amendment, modification, supplement, restatement, assignment, substitution or replacement would (A) impose additional conditions precedent or expand upon the conditions precedent to the funding of the TransactionsDebt Financing, including (B) reduce the Merger and (ii) customary legal opinions as are required by amount of the 2022 Indenture Debt Financing or the Facility Agreement in connection with net cash proceeds available from the Debt Financing to an amount that would be less than an amount that would be required to pay the Required Amount (after taking into account any cash on hand, available lines of credit (including Parent’s existing revolving credit facility) and other sources of funds available to Parent on the Closing Date), (C) prevent or materially delay or make materially less likely the funding of the Debt Financing (or the satisfaction of the Financing Conditions) on the Closing Date or materially impair, delay or prevent the consummation of the TransactionsTransactions or the other transactions contemplated by this Agreement, (D) materially adversely affect Parent’s ability to consummate the Transactions or the other transactions contemplated by this Agreement or (E) materially adversely impact the ability of Parent to enforce its rights against the Debt Financing Sources or any of the other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (clauses (A) through (E), each an “Adverse Effect on Financing”); provided that Parent may, without the prior written consent of the Company, amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter, including (1) to add and appoint additional arrangers, bookrunners, underwriters, agents, lenders and similar Debt Financing Entities that have not executed the MergerDebt Financing Documents as in effect on the date hereof and, in connection therewith, amend the economic and other arrangements with respect to such appointments, (2) modify pricing, (3) terminate or reduce any commitments under the Debt Financing in order to obtain or as a result of having obtained a Permanent Financing and/or (4) increase the aggregate amount of the Debt Financing, in each case, so long as such amendments would not be reasonably expected to result in an Adverse Effect on Financing. Upon request of the Company, Parent shall keep the Company informed in reasonable detail of the status of Parent’s efforts to arrange the Debt Financing. Any alternative, substitute or replacement debt financing obtained by Parent in accordance with this paragraph and the previous paragraph is the “Alternative Financing.” For purposes of this Agreement, references to “Debt Financing” shall include the financing contemplated by any Alternative Financing and references to “Debt Commitment Letter,” “Debt Fee Letters,” “Debt Financing Documents,” “Debt Financing Entities,” “Debt Financing Sources” or “Financing” shall include the documents (or commitments or financing sources, as applicable) in connection with any Alternative Financing to the extent permitted by this Section 5.21, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same extent as the Debt Financing contemplated by the Debt Commitment Letter. Notwithstanding anything to the contrary contained in this Agreement, in no event shall Parent or its Affiliates be required to pay any fees or any interest rates applicable to the Alternative Financing in excess of those contemplated by the Debt Commitment Letter as in effect on the date hereof (including the market flex provisions (if any)) or agree to any term (including any market flex term (if any)) less favorable (taken as a whole) to Parent than such term contained in the Debt Commitment Letter as in effect on the date hereof (including the market flex provisions (if any)). Parent and Parent Merger Subs expressly acknowledge and agree that their obligations under this Agreement are not subject to, or conditioned on, Parent’s or Parent Merger Subs’ receipt of financing.
(e) Notwithstanding anything to the contrary in this Section 5.21, Parent may, without notice to or consent of the Company, reduce the amount of the Debt Financing under the Debt Commitment Letter, or terminate the Debt Commitment Letter, to the extent that the remaining amount of the Debt Financing under the Debt Commitment Letter (if any) after such reduction or termination, taken together with the net cash proceeds of one or more offerings, placements, sales and/or other issuances of debt and/or equity securities of or term loans to Parent subsequent to the date hereof (collectively, “Permanent Financing”), together with cash on hand, available lines of credit (including under Parent’s existing revolving credit facility) and other sources of funds available to Parent on the Closing Date, is sufficient to consummate the transactions contemplated hereunder to occur at Closing (including payment of the Required Amount).
Appears in 2 contracts
Sources: Merger Agreement (Gildan Activewear Inc.), Merger Agreement (Hanesbrands Inc.)