Financing. (a) 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 use 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 Debt Financing on or prior to the Closing 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation. (c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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. (a) 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 The Purchaser shall use reasonable its best efforts to takeobtain 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 cause any waiver of any provision or remedy under, the Financing Commitments without the prior written consent of the Seller if such amendments, modifications or waivers would or would reasonably be expected to be taken(i) reduce the aggregate amount of the Financing below the amount required to consummate the Contemplated Transactions or amend or modify any conditions in a manner adverse to the Seller, all actions(ii) impose new or additional conditions to the receipt of the Financing, and (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) Without limiting the generality of Section 5.8(a), the Purchaser shall use reasonable best efforts to do(i) maintain in effect each of the Financing Commitments, or cause (ii) satisfy all conditions and covenants applicable to be done, all things reasonably necessary or advisable, to arrange and obtain the Debt Purchaser in the Financing and to consummate the Debt Financing Commitments on or prior to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: (i) and otherwise comply with and maintain in effect the Debt Commitment Letter (subject to any amendmentits obligations thereunder, 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 enforce its rights under the 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; Commitments and (iv) in the event that all conditions in the Offer Conditions 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 or waived or, upon funding would be satisfied, cause the persons providing the Financing to fund on the Closing Date the Financing required to consummate the Debt Financing (including transactions contemplated 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)this Agreement.
(bc) From The Purchaser shall keep the date of this Agreement until the earlier Seller promptly informed of the Effective Time or status of its efforts to consummate the termination of this Agreement in accordance with Article IX, Parent Financing and its Affiliates shall give the Company Seller prompt notice written notice: (i) of any material breach or material default (or any event or circumstance that, with or without notice, lapse or time or both, would reasonably be expected to give rise to any material breach or material default) by any party to the Financing Commitments or definitive document related to the Financing of which Purchaser becomes aware; (ii) of the receipt of any written notice or other written communication from any party to the Financing Commitments with respect to any breach, repudiation or threatened material breach default, termination or repudiation by any party to the Debt Commitment Letter of which Parent Financing Commitments or its Affiliates any definitive document related to the Financing; and (iii) if the Purchaser becomes aware; provided aware that none of Parent or Merger Sub shall it will not be required able to disclose or provide any such information, the disclosure of which, in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event obtain all or any portion of the Debt 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 information that is privileged.
(d) In the event any portion of the Financing becomes unavailable on the terms and conditions described in or contemplated by the Debt Commitment Letter (including the flex provisions (if any)) (other than as a result of the Company’s breach of Financing Commitments for any provision of this Agreement or failure to satisfy the conditions set forth in Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amountreason whatsoever, as promptly as reasonably practicable following the occurrence of such event, and (iii) the Purchaser shall use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate principal amount of such obtain alternative financing from alternative sources on terms and conditions substantially not less favourable, taken as a whole, to be funded on Purchaser (in the Closing Date or impose additional conditions precedent to reasonable judgment of Purchaser) than those in 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, without the prior written consent of the Company, Parent unavailable Financing Commitments 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 sufficient, when taken together with the Required Amount (after taking into account any Purchaser’s cash on hand, available lines of credit (including under Borrower’s existing revolving credit hand and securitization facilities) and other sources of immediately available funds), (C) prevent or materially delay or make materially less likely the funding of the Debt Financing (or the satisfaction each of the Financing Conditions) on Commitments that remains available at the Closing Date or materially impair, delay or prevent time to pay the consummation of the transactions contemplated by this Agreement, including the Offer Purchase Price and the Merger, fees and expenses payable by the Purchaser in connection with the Contemplated Transactions (D) materially adversely affect Parent’s ability to consummate the transactions contemplated by this Agreement, including the 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 Alternative 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 The Purchaser shall keep the Company Seller promptly informed in reasonable detail on a reasonably current basis of the status of Parent’s its efforts to arrange the Debt any Alternative Financing. Any alternative, substitute or replacement debt financing obtained by Parent in accordance with this paragraph and For the previous paragraph is the “Alternative Financing.” For purposes of this Agreement, references to “Debt FinancingFinancing Commitments” shall be deemed to include the financing contemplated by 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 references shall cause the ELN Companies to “Debt Commitment Letter”use commercially reasonable efforts, “Debt Fee Letters”and shall use its commercially reasonable efforts to cause its respective representatives to, “Debt Financing Documents”provide to the Purchaser, “Debt Financing Entities”at the Purchaser’s sole expense in respect of the Seller’s out-of-pocket costs, “Debt Financing Sources”, or “Financing” shall include all reasonable cooperation requested by the documents (or commitments or financing sources, as applicable) Purchaser that is required in connection with the Financing and any Alternative Financing Financing, including (i) furnishing the Purchaser and its financing sources with (1) copies of the Financial Statements, together with, to the extent permitted applicable, the report of the Seller’s auditors with respect thereto, and (2) all information relating to the 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 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 Closing) by the ELN Companies reasonably necessary to permit the completion of the Financing, (ix) facilitating the execution and delivery at the Closing (subject to the occurrence of the Closing) of definitive documents related to the Financing on the terms contemplated by the Financing Commitments, and (x) using commercially reasonable efforts to 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 nothing herein shall require such cooperation to the extent it 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 7.18, and such Alternative Financing 5.8 that would become legally binding on any of them prior to the Closing. Neither the Seller nor any of the ELN Companies shall be required to comply with the provisions take any action that would subject any of this Agreement them to the same extent as the Debt Financing. Notwithstanding anything any liability, to the contrary contained in this Agreement, in no event shall Parent bear any third-party cost or its Affiliates be required expense or to pay any commitment or other similar fee or make any other payment (other than reasonable out-of-pocket costs or any such costs, expenses, fees or any interest rates applicable payments to the Alternative Financing in excess of those contemplated be reimbursed by the Debt Commitment Letter as in effect on the date hereof (including the market flex provisions (if any)Purchaser) or incur any other liability or provide or agree to provide any term indemnity in connection with the Financing or any of the foregoing, which is effective prior to the Closing. 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 market flex term action taken in accordance with this Section 5.8) and any information utilized in connection therewith (if any)other than the Required Information) less favorable (taken as a whole) to Parent than such term contained except in the Debt Commitment Letter as 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 Seller, its Affiliates or any of their respective officers, employees or representatives. The Purchaser shall, promptly upon request by the Seller, reimburse the Seller and the ELN Companies for all documented and reasonable out-of-pocket costs incurred by the Seller and the ELN Companies in effect on the date hereof (including the market flex provisions (if any)connection with this Section 5.8(e). Parent and Merger Sub expressly acknowledge and agree The Seller hereby consents to the reasonable use of the ELN Companies’ logos in connection with the Financing, provided that their obligations under this Agreement, including their obligations such logos are used solely in a manner that is not intended or reasonably likely to consummate harm or disparage the Offer and the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of financingELN Companies in any respect.
Appears in 3 contracts
Sources: Purchase Agreement (Quebecor Media Inc), Purchase Agreement (Postmedia Network Canada Corp.), Purchase Agreement (Postmedia Network Canada Corp.)
Financing. (a) From 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 this Agreement until which has been delivered to the earlier of Company (the Effective Time or the termination of this Agreement in accordance with Article IX, Parent and its Affiliates shall use 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 “Debt Commitment Letter”) from the Debt Financing and Sources party thereto pursuant to consummate which the Debt Financing on or prior Sources have agreed, subject to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: (i) comply with terms 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 conditions thereof, on a timely basis all Financing Conditions to provide the extent within the control of Parent and its Affiliates; (iii) negotiate, execute and deliver Debt Financing Documents debt amounts set forth therein. The financings referred 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 are collectively referred to in this Agreement as the “Debt Financing”.
(including any “market flex” provisions (if anyb) 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 As of 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 obligations of 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is are not subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 Adverse Effect on Financing (precedent or other contingencies, except as defined below) as compared to those set forth in the Debt Commitment Letter delivered 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 with only the amount of fees, “pricing flex” and other economic terms therein redacted (none of which (i) subject the funding of the Debt Financing to any additional conditions precedent or other contingencies or (ii) could reduce the 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 additional conditions precedent or other contingencies or (B) could reduce the total amount of the Debt Financing available to 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, thatthere are no side agreements or other arrangements, when taken together commitments or understandings with respect to the portion Debt Financing.
(c) As of the date hereof and assuming satisfaction or waiver (to the extent permitted by applicable Law) of the conditions to Parent’s and each Merger Sub’s obligations to consummate the Merger, 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 Debt Commitment Letter on or prior to the Closing Date, nor does Parent have knowledge, as of the date of this Agreement, that any of the Debt Financing that remains available Sources will not, or is expected not to, perform its obligations thereunder.
(d) As of the date hereof, the Debt Commitment Letter is a legal, valid and any cash on handbinding obligation of Parent and, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) and other sources of immediately available funds, is at least equal to the Required Amountknowledge of Parent, as promptly as practicable following of the occurrence of such event, other parties thereto. Parent has paid in full any and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing all commitment that provides for such alternative financing; provided that any provisions set forth in such new financing commitment relating to fees, pricing terms, “market flex” provisions (if any) and fees or other terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate principal amount of such alternative financing fees required to be funded on the Closing Date or impose additional conditions precedent paid pursuant to the funding terms of the Debt Commitment Letter on or before the date of this Agreement and will pay in full any such alternative financing amounts due on or before the Closing Date.
(de) From For the date avoidance of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same extent as the Debt Financing. Notwithstanding anything to the contrary contained in this Agreementdoubt, in no event shall the receipt or availability of any funds or financing (including, for the avoidance of doubt, the Debt Financing) by Parent or its Affiliates be required to pay any fees Affiliate thereof 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)) other financing or agree other transactions be a condition 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, of Parent’s or either Merger Sub’s receipt of financingobligations hereunder.
Appears in 3 contracts
Sources: Merger Agreement (Synnex Corp), Merger Agreement (Synnex Corp), Merger Agreement (Convergys Corp)
Financing. (a) From CTWS shall, and shall cause the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXCTWS Subsidiaries and direct its and their respective Representatives to, Parent use its and its Affiliates shall use their respective reasonable best efforts to take, provide such cooperation as may be reasonably requested by SJW or cause its Affiliates in connection with the arrangement of any financing to be takenconsummated in connection with the Merger and the other transactions contemplated by this Agreement (the “Debt Financing”) including, all actionswithout 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 use actual and potential financing sources, on the other hand), in each case on reasonable best efforts to do, or cause advance notice and at times and locations to be donemutually agreed, all things reasonably necessary (ii) furnishing SJW with customary financial and other information regarding CTWS and the CTWS Subsidiaries and assisting SJW or advisableits 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, to arrange and obtain the Debt Financing and to consummate the Debt Financing on or in any event within 10 Business Days prior to the Closing Date. Such actions , with all documentation and other information required with respect to the Debt Financing under 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 include, but not be limited to, using reasonable best efforts to: require such cooperation to the extent it would (i) comply with and maintain in effect unreasonably disrupt 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 conduct of the Effective Time business or the termination operations of this Agreement in accordance with Article IX, Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all CTWS 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons thereforCTWS Subsidiary, (ii) use reasonable best efforts require CTWS or any CTWS Subsidiary to obtain alternative financing from the same pay any fees, reimburse any expenses or alternative Debt Financing Entities on terms and conditions, taken as a whole, no less favorable to Parent than the Financing Conditions, not involving otherwise incur any conditions that would constitute an Adverse Effect on Financing (as defined below) as compared to those set forth in the Debt Commitment Letter delivered liability prior to the Company on the date hereofEffective Time, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts require CTWS or any CTWS Subsidiary to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such alternative financing; provided that take 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 redacted, so long as such redaction does not extend to any terms action that would reasonably be expected to reduce conflict with or violate applicable Law, or result in any violation or breach of, or default under, the aggregate principal amount certificate of such alternative financing incorporation or by-laws or other comparable organizational documents of CTWS or any CTWS Subsidiary, or (iv) require CTWS or any CTWS Subsidiary to be funded on the Closing Date execute or impose additional conditions precedent deliver any certificate, document, instrument or agreement, or undertake any obligation, that is effective prior to the funding Closing.
(b) CTWS shall, and shall cause the CTWS Subsidiaries and direct its and their respective Representative to, assist in connection with amending the terms of, the pay-off of such alternative or the obtaining of consents pertaining to existing Indebtedness of CTWS or any CTWS Subsidiary, including the delivery of customary payoff letters and releases of related guarantees, liens and other security interests, as applicable, in each case at the request of SJW.
(c) SJW shall (i) promptly upon request by CTWS, reimburse CTWS for all reasonable and documented out-of-pocket fees and expenses (including auditor’s and attorneys’ fees and expenses) of CTWS, its Subsidiaries, its Affiliates and its and their respective Representatives incurred in connection with the requested 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 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 respect to any financing on the Closing Datesources, prospective lenders, agents and arrangers and ratings agencies).
(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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same extent as the Debt Financing. Notwithstanding anything to the contrary contained in this Agreementherein, in no event shall Parent any breach by CTWS or its Affiliates be required to pay any fees or any interest rates applicable to the Alternative Financing in excess Subsidiaries 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 Section 6.12 shall not constitute a breach of this Agreement for purposes of Article VIII or a breach of the Offer and the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of financingcondition precedent set forth in Section 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) From the date Each of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXParent, Parent First Merger Sub and its Affiliates Second Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary or advisable, advisable to arrange and obtain the Debt 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 to consummate the Debt Financing contemplated by such Financing Commitments on or prior to the date the Closing is required to occur pursuant to Section 2.02; and (v) enforce its rights under the Financing Commitments, except, in the case of clauses (i) through (v) above, to the extent (and solely to the extent) Parent or one or more of its Subsidiaries has issued in one or more offerings any debt or equity securities in lieu of the Financing on or prior to the Closing 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate principal amount of such alternative financing to be funded on the Closing Date or impose additional conditions precedent to otherwise will have sufficient cash at 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 FinancingClosing, in each case, so long as such amendments would not be reasonably expected to result case in an Adverse Effect on Financing. Upon request 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, Parent shall keep the Company informed in reasonable detail of the status payment obligations of Parent’s efforts to arrange , First Merger Sub, Second Merger Sub, the Debt Financing. Any alternative, substitute or replacement debt financing obtained by Parent in accordance with this paragraph Surviving Corporation and the previous paragraph is the “Alternative Financing.” For purposes of this Agreement, references to “Debt Financing” shall include the financing Surviving Entity 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) hereunder in connection with any Alternative Financing to the extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same extent as the Debt FinancingClosing. Notwithstanding anything to the contrary contained in this Agreementforegoing, in no event shall Parent or its Affiliates be required to pay any fees or any interest rates applicable to pursue litigation against the Alternative Financing Sources in excess respect of those contemplated by the Debt Commitment Letter as in effect on the date hereof this clause (including the market flex provisions (if any)a) 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 financingotherwise.
Appears in 3 contracts
Sources: Merger Agreement (Grail, LLC), Merger Agreement (Grail, LLC), Merger Agreement (Illumina, Inc.)
Financing. (a) 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 use 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 Debt Financing on or prior to the Closing 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same extent as the Debt Financing. 2.18.1 Notwithstanding anything to the contrary contained in this Agreement, Company will have the right at such time or times as Company desires and without Lessor’s consent, to hypothecate Company’s interest in no event shall Parent all or part of this Agreement, 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 Lessor, at any time during the term hereof to execute and deliver to any or all of its Affiliates be required to pay Leasehold Mortgagees any fees 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 interest rates applicable 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 Alternative Financing LDR forthwith. ▇▇▇▇▇▇ agrees to cooperate in excess executing any documents reasonably requested of those contemplated 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 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 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 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 date of foreclosure.
2.18.3 Any default by the Debt Commitment Letter 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 completion 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 on 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) the commencement and expiration dates of this Agreement and the date hereof to which rental has been paid to Lessor under this Agreement;
(including c) whether or not, to 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 knowledge of the Lessor, there is an existing default by Company 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 payment of Rent or any other sum of money under this Agreement, including their and 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 knowledge of Lessor, there are any set-offs, defenses or counter-claims against enforcement of the obligations to consummate be performed by Lessor or Company 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 Offer 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 term (it being the intent that the Agreement will remain in full force and effect if Leasehold Mortgagee performs), Lessor shall enter into a new Agreement with Leasehold Mortgagee holding a first priority interest covering the Premises, provided that the Leasehold Mortgagee (i) requests such new Agreement by written notice to Lessor within sixty (60) days 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 Mergervalue 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 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 not subject toperformed 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 conditioned oncontinuing to pursue, Parent’s 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 Merger Sub’s receipt adjustment of financinglosses 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 obtain provisions in Leasehold Mortgages providing that any proceeds of insurance shall first be used for the purposes provided for in this Agreement before any portion thereof is applied to repay any indebtedness under such Leasehold Mortgage.
Appears in 3 contracts
Sources: Lease Agreement, Lease Agreement, Lease Agreement
Financing. (a) From Subject to the date terms and conditions of this Agreement until the earlier Agreement, each of the Effective Time or the termination of this Agreement in accordance with Article IX, Parent and its Affiliates Merger Sub shall use its commercially reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, advisable or advisable, proper to arrange and obtain the Debt proceeds of the Equity Financing and to consummate contemplated by the Debt Financing Equity Commitment Letter on or prior to the Closing Date. Such actions shall includeDate on the terms and conditions described in the Equity Commitment Letter, but not be limited to, using reasonable best efforts to: including (ia) comply with maintaining in full force and maintain in effect the Debt Equity Commitment Letter in accordance with the terms thereof and complying with its obligations thereunder and (subject to any amendment, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (db) below); (ii) satisfy, or obtain a waiver thereof, satisfying 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 Equity Financing set forth in 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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 Equity Commitment Letter, including (1) to add and appoint additional arrangersif any, 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 are within Parent’s 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 FinancingMerger Sub’s control, in each case, so long as such amendments would no later than at the Closing (excluding conditions that, by their terms, cannot be reasonably expected satisfied until the Closing, but subject to result 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 an Adverse Effect on 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. Upon request of the Company, Parent and Merger Sub shall keep the Company informed in reasonable detail of the status of Parent’s its efforts to arrange the Debt Financing. Any alternative, substitute or replacement debt Equity Financing and any other financing obtained by Parent in accordance with this paragraph upon the written request of the Company and shall give the previous paragraph is the “Alternative Financing.” For purposes Company prompt written notice of this Agreement, references to “Debt Financing” shall include the financing contemplated (i) any breach 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 party to the extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions Equity Commitment Letter of this Agreement to the same extent as the Debt Financing. Notwithstanding anything to the contrary contained in this Agreement, in no event shall any material provision which 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, has become aware or conditioned on, (ii) Parent’s or Merger Sub’s receipt good faith belief, for any reason, that it may no longer be able to obtain all or any portion of financingthe Equity Financing contemplated by the Equity Commitment Letter on the terms and conditions described therein.
Appears in 3 contracts
Sources: Merger Agreement (Vapotherm Inc), Merger Agreement (Vapotherm Inc), Merger Agreement (Army Joseph)
Financing. (a) From Subject to the date terms and conditions of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXAgreement, Parent shall (and shall cause its Affiliates shall to) use its commercially reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisable, advisable to arrange consummate and obtain the Debt Financing on the terms and subject only to consummate the conditions (including pursuant to any “flex” provisions in any fee letter relating to the Debt Financing) set forth in the Financing on or prior Letters, including using commercially reasonable efforts to the Closing Date. Such actions shall include, but not be limited to, using reasonable best 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 Debt Commitment Letter Financing Letters (subject to any amendmentParent’s right to replace, restate, supplement, replacementmodify, substitutionassign, 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 other modification 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 waiver that is otherwise not prohibited by clause materially less favorable with respect to conditionality to Parent in the aggregate than those contained in the Debt Commitment Letters, (div) below); (ii) satisfy, or obtain a waiver thereof, satisfy on a timely basis all conditions contained in the Financing Conditions Letters that are applicable to the extent within the control of Parent and its Affiliates; (iii) negotiateAffiliates and the definitive agreements related thereto, execute and deliver including the payment of any commitment, engagement or placement fees required as a condition to the Debt Financing Documents or Equity Financing, as applicable, (v) if all conditions to the extent required to pay Debt Financing and 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 Equity 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 LetterLetters and Equity Funding Letters, respectively, cause the Persons committing to fund the applicable Financing to fund such Financing at the Closing and enforcing Parent’s (vi) enforce its rights under the Debt Commitment Letter Financing Letters and the definitive agreements relating to the Debt Financing).
(b) From . To 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 extent reasonably requested by the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party in writing from time to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 Companytime, Parent shall keep the Company reasonably informed on a reasonably current basis and in reasonable detail of the status of Parent’s its 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 provide to “Debt Commitment Letter”, “Debt Fee Letters”, “the Company copies (including material drafts) of the material 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 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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))documents. Parent and Merger Sub expressly acknowledge and agree that their obligations under this Agreement, including their obligations to consummate shall give the Offer and the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of financing.Company prompt notice upon
Appears in 3 contracts
Sources: Merger Agreement (Ares Management LLC), Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Cincinnati Bell Inc)
Financing. (a) From the date of this Agreement until the earlier A. The City's issuance of the Effective Time or the termination of this Agreement 2010 Note is authorized by and in accordance with Article IXthe 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 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, Parent the City has refinanced the cost of the CRA Projects through the issuance of the 2010 Note pursuant to the Resolution, and its Affiliates 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, subject to Section 4 hereof, the Community Redevelopment Agency shall use reasonable best efforts to take, immediately deposit or cause to be takendeposited Tax Increment Revenues received by the Community Redevelopment Agency with the City in amounts sufficient to pay the following (the "CRA Obligations"):
(i) 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 actionsamounts necessary to reimburse the City for amounts expended by it to pay any of the items mentioned in clauses (i) or (ii) above and any interest thereon as prescribed in Section 2 hereof. Subject to Section 4 hereof, the obligation to transfer the Tax Increment Revenues to the City to pay the CRA Obligations specified in clauses (i) and (ii) above shall survive the 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 use reasonable best efforts has taken all action required by law to doentitle 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 Tax Increment Revenues as now or later required by law, and to make or cause to be donemade any deposits of Tax Increment Revenues or other funds required by this Agreement and the Resolution.
F. Subject to Section 4 hereof, all things reasonably necessary or advisable, to arrange the Community Redevelopment Agency does hereby authorize and obtain the Debt Financing and to consummate the Debt Financing on or prior consent to the Closing Date. Such actions shall includeexercise of full and complete control and custody of the Redevelopment Trust Fund, but not be limited toand any and all moneys therein, using reasonable best efforts to: (i) comply with and maintain in effect by 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 City for 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 purpose provided 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; Resolution 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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 payment 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, 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 FinancingCRA Obligations.” 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 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 3 contracts
Sources: Interlocal Agreement, Interlocal Agreement, Interlocal Agreement
Financing. (a) 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 Verizon shall use its commercially reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisable, advisable to arrange consummate and obtain the Debt proceeds of, the Financing and to consummate and, if applicable, the Debt Replacement Financing on or prior the terms and conditions described in the Financing Documents and Replacement Financing Documents, including using commercially reasonable efforts to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: (i) comply with its obligations and maintain in effect satisfy the Debt Commitment Letter (subject conditions precedent to any amendmentfunding under the Financing Documents and, supplementif applicable, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below)Replacement Financing Documents; (ii) satisfyupon 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 obtain a waiver thereofconditions that are more favorable to Verizon) as may appear in any Replacement Financing Document), on a timely basis all consummate the Financing Conditions and, if applicable, the Replacement Financing at or prior to the extent within the control of Parent Closing; and its Affiliates; (iii) negotiatecause the Financing Sources and, execute and deliver Debt if applicable, Replacement Financing Documents Sources to fund on the Closing Date the Financing and, if applicable, the Replacement Financing 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 Transaction in accordance with the Debt Commitment Letterterms thereof (including, and enforcing Parent’s rights to the extent commercially reasonable, by promptly taking enforcement action under the Debt Commitment Letter and Financing Documents and, if applicable, the definitive agreements relating to Replacement Financing Documents in the Debt Financingevent of a breach by any Financing Sources or Replacement Financing Sources).
(b) From Verizon shall have the date right to substitute the proceeds of this Agreement until the earlier of the Effective Time consummated debt (including unsecured notes) or the termination of this Agreement in accordance with Article IX, Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event equity offerings for all or any portion of the Debt Financing becomes unavailable on or, if applicable, Replacement Financing by reducing commitments under the terms and conditions contemplated by Financing and, if applicable, any Replacement Financing; provided, that to the Debt Commitment Letter (including extent any consummated debt has a scheduled special or mandatory redemption right, such right is not exercisable prior to the flex provisions (if any)) (Termination Date. Further, Verizon shall have the right to substitute commitments in respect of other than as a result debt or equity financing for all or any portion of the Company’s breach Financing from the same and/or alternative bona fide third-party financing sources (“Replacement Financing Sources”) so long as (i) all conditions precedent to effectiveness of any provision definitive documentation for such debt or equity financing have been satisfied and the conditions precedent to funding under the debt financing or issuance of this Agreement the equity financing are, in respect of certainty of funding, substantially equivalent to (or failure conditions that are more favorable to satisfy Verizon than) the conditions set forth in Section 8.1 3.02 of the Loan Facility, and Annex 1)(ii) in respect of any debt financing, then Parent and its Affiliates shall prior to funding of the loans thereunder, the commitments in respect of such debt financing are subject to restrictions on assignment which are substantially equivalent to or more favorable to the Verizon than the restrictions set forth in Section 8.07 of the Loan Facility (any such debt or equity financing which satisfies the foregoing clauses (i) promptly notify the Company thereof and the reasons therefor, (ii) use reasonable best efforts to obtain alternative financing from ), the same or alternative Debt “Replacement Financing”; the definitive documentation for any such Replacement Financing, the “Replacement 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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 DateDocuments”).
(dc) From Verizon shall have the date of this Agreement until right from time to time to amend, replace, supplement or otherwise modify, or waive any provision or remedy under, the earlier of the Effective Time Financing Documents or the termination of this Agreement in accordance with Article IXReplacement Financing Documents; provided, that Verizon shall not, without the prior written consent of Vodafone, at any time prior to the CompanyClosing: (i) permit any amendment, Parent and its Affiliates shall not amendreplacement, modifysupplement or modification to, supplement, restate, assign, substitute or replace the Debt Commitment Letter or any Debt waiver of any material provision or remedy under, any Financing Document or Replacement Financing Document if such amendment, modificationreplacement, supplement, restatement, assignment, substitution modification or replacement would waiver (A) impose additional adds any new (or modifies, in a manner materially adverse to Verizon, any existing) conditions precedent or expand upon the conditions precedent to the funding consummation of the Debt FinancingFinancing or Replacement Financing (as applicable), (B) reduce reduces the aggregate amount of the Debt 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 the net cash proceeds available from the Debt Financing to on hand in 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 existing revolving credit and securitization facilities) and other sources of immediately available funds)equal to such reduction, (C) prevent 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 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 delays the consummation of the transactions contemplated by this Agreement; provided, including further, that notwithstanding the Offer and foregoing, Verizon may amend the MergerFinancing Documents and/or Replacement Financing Documents to add lenders, (D) materially adversely affect Parent’s ability to consummate the transactions contemplated by this Agreementlead arrangers, including the Offer and the Merger syndication agents, documentation agents or similar entities who had not executed any Financing Document and/or Replacement Financing Document; or (Eii) materially adversely impact terminate the ability of Parent or any of its Affiliates’ to enforce their respective rights against the Debt Financing Sources or any of the Loan Facility other parties than to the Debt Commitment Letters or the definitive agreements with respect thereto (clauses extent that (A) through the commitments under the Loan Facility have been reduced to zero in accordance with its terms or (E), each B) Verizon has obtained Replacement Financing in an “Adverse Effect on Financing”); provided that Parent may, without aggregate amount equal to the prior written consent commitment under the Loan Facility at the time of such termination of the CompanyLoan Facility. Verizon shall promptly following execution deliver to Vodafone copies of any such amendment, amend, modifyreplacement (including any Replacement Financing Document), supplement, restate, assign, substitute modification or replace the Debt Commitment Letter, including waiver (1) which may be redacted 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 delete 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same extent as the Debt Financingcompensation information). Notwithstanding anything to the contrary contained in this Agreement, Verizon agrees that it shall not reduce the aggregate amount of all unfunded commitments in no event 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 the avoidance 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 consent, which shall Parent not be unreasonably withheld, conditioned or delayed.
(d) Verizon acknowledges and agrees that Vodafone and its Affiliates be required (including, prior to pay any fees the Closing, the Sold Entities), their respective Representatives and, prior to the Closing, the Partnership or any interest rates applicable of its Subsidiaries and their respective Representatives, shall not have any responsibility for, or incur any liability to, any Person under or pursuant to the Alternative Financing or Replacement Financing pursuant to the Financing Documents or Replacement Financing Documents, if any, and that Verizon shall indemnify and hold harmless Vodafone and its Affiliates (including, prior to the Closing, the Sold Entities), their respective Representatives and, prior to the Closing, the Partnership and its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in excess connection with the 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 those the representations, warranties or covenants of Vodafone under this Agreement. Verizon shall keep Vodafone reasonably informed with respect to all material activity concerning the status of the financing contemplated by the Debt Commitment Letter as in effect on the date hereof (including the market flex provisions 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 agree require Verizon to provide indemnification in respect of 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 financingliability.
Appears in 3 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Vodafone Group Public LTD Co), Stock Purchase Agreement (Verizon Communications Inc)
Financing. (a) From Parent covenants and agrees with the date Company, on behalf of this Agreement until the earlier itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Effective Time or the termination of this Agreement in accordance with Article IXClosing Date, Parent and its Affiliates shall use reasonable best efforts to takeMerger Sub will have funds, or cause to be takenin the aggregate, 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 Debt Financing on or prior to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: sufficient for (i) comply with the payment of the aggregate Cash Consideration and maintain 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 effect respect of the Debt Commitment Letter (subject Reserved Company Common Stock, and the aggregate amount of cash to any amendmentbe paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below); (ii) satisfythe funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, 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 the payment of all fees and deliver Debt Financing Documents to the extent expenses and other payment obligations required to pay be paid or satisfied by Parent, Merger Sub and 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 Surviving Entity 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 connection with the Debt Commitment Letter, and enforcing Parent’s rights under the Debt Commitment Letter Merger and the definitive agreements relating to the Debt Financing).
(b) From The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to 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 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 this Agreement until the earlier most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Effective Time or Company), (ii) 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 termination of this Agreement rating agencies, in accordance with Article IXeach case, Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party relating to the Debt Commitment Letter completion of which Parent or its Affiliates becomes aware; provided that none of Parent or Merger Sub shall be required to disclose or provide any such informationthe Financing by the Financing Sources, the disclosure of which, (iii) assist in the judgement preparation of Parent upon advice of outside counsel(A) any customary offering documents, is subject to attorney-client privilege or which would be in violation of 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 confidentiality obligation.
(c) In the event all or any portion component of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter (including consenting to the flex provisions (if any)) (other than as a result use of the Company’s breach 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 provision of this Agreement or failure to satisfy the conditions set forth in Section 8.1 and Annex 1its Subsidiaries), then Parent (v) execute and its Affiliates shall deliver (i) promptly notify the Company thereof and the reasons therefor, (ii) or 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such eventits advisors), and cause its Subsidiaries to execute and deliver (iii) or use reasonable best efforts to obtainobtain from its advisors), credit agreements and when obtainedother loan documents, provide 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 Company Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with a true and complete copy ofthe Financing, a new financing commitment that provides for such alternative financingincluding any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any provisions set forth 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 financing commitment relating to feesdocuments, pricing terms, “market flex” provisions (if any, do not include material non-public information about the Company or its Affiliates, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) and other terms that are customarily redacted (including any dates related thereto) may be redactedcooperate reasonably with Financing Sources’ due diligence, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate principal amount of such alternative financing to be funded on the Closing Date or impose additional conditions precedent to the funding extent customary and reasonable and to the extent not unreasonably interfering with the business of such alternative financing on the Closing DateCompany and its Subsidiaries.
(dc) From Notwithstanding the date of this Agreement foregoing, until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXoccurs, without the prior written consent of neither the Company, Parent and any of its Affiliates Subsidiaries, nor their respective Representatives, shall not amend, modify, supplement, restate, assign, substitute or replace (i) be required to take any action in the Debt Commitment Letter capacity of a director of the Company 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 of its Subsidiaries with respect 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement, including the Offer and the Merger) if such Representative believes such action would be inconsistent with their fiduciary duties, (Dii) materially adversely affect Parent’s ability be required to consummate pay any commitment or other similar 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 Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement, including the Offer and the Merger ) or (Eiv) materially adversely impact be required to incur any other liability in connection with the ability of Financing (or any alternative financing that Parent or may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Affiliates’ to enforce Subsidiaries or their respective rights 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 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 the transactions contemplated by this Agreement), and (iii) shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against the Debt Financing Sources any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by any of the other parties them prior to the Debt 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) In the event that the Commitment Letters 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 comply with its covenants in Section 6.11(b) with respect to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and with respect to such other debt or 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 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 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 conditions contemplated by the Commitment Letter (clauses (A) through (Eany such agreements the “Definitive Financing Agreements”), each an “Adverse Effect on Financing”); provided that (B) adversely impact the ability of Parent mayto enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, without or (C) prevent, impede or delay the prior written consent consummation of the CompanyMerger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, amendreplaced, modify, supplement, restate, assign, substitute supplemented or replace otherwise modified and/or such other debt or equity financing and references to the Debt Commitment Letter, including (1) Financing shall be deemed 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 refer instead to such appointments, alternative financing.
(2e) modify pricing, (3) terminate All non-public 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 otherwise confidential information regarding 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 or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with this paragraph and the previous paragraph is the “Alternative FinancingConfidentiality Agreement.” 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 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 3 contracts
Sources: Merger Agreement (Rock-Tenn CO), Merger Agreement (SMURFIT-STONE CONTAINER Corp), Merger Agreement (Rock-Tenn CO)
Financing. (a) From Subject to the date terms and conditions of this Agreement until the earlier Agreement, each of the Effective Time or the termination of this Agreement in accordance with Article IX, Parent and its Affiliates Merger Sub shall use its reasonable best efforts to take, or (i) cause the Lender 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 fund the Debt Financing on the terms and conditions described in the Facility Agreement at or prior to the Closing Date. Such actions shall includeEffective Time, but not be limited to, using reasonable best efforts to: (iii) comply with and maintain in effect the Debt Commitment Letter Financing Commitments until the Transactions are consummated, (subject to any amendment, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (diii) below); (ii) satisfy, or obtain a waiver thereof, satisfy on a timely basis all conditions precedent to funding of the Debt Financing Conditions 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 within necessary to fund the control of Merger Consideration, and (v) cause the Sponsor to fund the Equity Financing at or prior to the Effective Time; provided, that (i) Parent and its AffiliatesMerger Sub may amend or modify the Financing Commitments and/or elect to replace all or any portion thereof; or (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 (ivii) 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or 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 contemplated by described in the Debt Commitment Letter Alternative Facility Agreement (including the flex provisions (if anyany “market flex” provision)) (other than as a result . Each of the Company’s breach of any provision of this Agreement or failure to satisfy the conditions set forth in Section 8.1 and Annex 1), then Parent and Merger Sub shall use its Affiliates shall reasonable best efforts to (i) promptly notify maintain in effect the Company thereof and the reasons thereforAlternative Facility Agreement, (ii) use reasonable best efforts to obtain alternative financing from the same or alternative Debt Financing Entities satisfy on terms and conditions, taken as a whole, no less favorable to Parent than the Financing Conditions, not involving any timely basis all conditions that would 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, that, when taken together with the portion of the Debt Alternative Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such eventAgreement within its control, and (iii) use reasonable best efforts to obtain, and when obtained, provide enforce its rights under the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate principal amount of such alternative financing to be funded on the Closing Date or impose additional conditions precedent Alternative Facility Agreement 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, 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 extent necessary 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 fund 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, 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 FinancingConsideration. Upon request of the Company, Parent shall keep the Company reasonably informed in reasonable detail on a reasonably current basis 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 “any Alternative Financing.” For purposes
(b) Subject to the terms and conditions of this Agreement, references 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” Financing or Alterative Financing that are permitted thereunder. Parent shall include give the financing contemplated Company notice promptly (i) upon becoming aware of any breach of any material provisions of, or termination by any party to, the Financing Commitments and, if applicable, the Alternative Facility Agreement.
(c) The Company shall, and shall cause each of the Company’s Subsidiaries and each of their respective Representatives to, provide to Parent 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 references the Transactions, 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 “Debt Commitment Letter”assist directly with the Lender or the Sponsor, “Debt Fee Letters”(ii) assisting with the preparation of such materials (which shall include, “Debt Financing Documents”, “Debt Financing Entities”, “Debt Financing Sources”, but shall not be limited to bank information memoranda and information for rating agency presentations) as the Parent or “Financing” shall include the documents (or commitments or financing sources, as applicable) 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 conduct of any examination, appraisal or review of the financial condition or any of the assets or 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 extent permitted 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 foregoing, (vii) entering into one or more credit or other agreements conditioned upon Closing and on terms satisfactory to Parent and Merger Sub in connection with the Debt Financing and/or the 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 this Section 7.18Parent 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 such 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 (xii) furnishing Parent, Merger Sub, their respective Representatives and sources of Debt Financing and/or Alternative Financing shall be as promptly as practicable with all documentation and other information reasonably required by Governmental Authorities with respect to comply 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 provisions ongoing operations of this Agreement to the same extent as Company and its Subsidiaries or (y) the Debt Financing. Notwithstanding anything to the contrary contained in this Agreement, in no event Company shall Parent or its Affiliates not be required to pay any fees commitment or other similar fee incur any interest rates applicable other liability in connection with the Financing prior to the Alternative Financing in excess of those Effective Time. Other than as expressly 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)). this Agreement, Parent and Merger Sub expressly acknowledge and agree that the Company and its Affiliates and its and their obligations respective Representatives shall not, prior to the Effective Time, incur any liability to any financing provider or other third party under this Agreementany financing that Parent or Merger Sub may raise in connection with the Transactions.
(d) No later than five Business Days prior to the Closing Date and at all times until the Effective Time, including their obligations the Company shall cause (i) one or more of its wholly-owned PRC Subsidiaries established or incorporated in the PRC (“PRC Subsidiaries”) to consummate transfer and deposit cash into one or more specified accounts (each, an “Onshore Bank Designated Account”) held with the Offer Onshore Account Branch referred to in the Facility Agreement (or such other bank or financial institution approved by the Lender as notified by Parent) and standing to the credit of such PRC Subsidiaries and (ii) one or more of its wholly-owned Subsidiaries that are not established or incorporated in the 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 each of the foregoing cases, such that the aggregate balance standing to the credit of the Onshore Bank Designated Accounts and the MergerOffshore Bank Designated Accounts is not less than RMB100,000,000 (or its equivalent, are not subject toas 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, or conditioned on, Parent’s or Merger Sub’s receipt of financingthe “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) 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 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 reasonably necessary or advisable, advisable to arrange and obtain the Debt Financing and to consummate the Debt Financing on at or prior to the Closing Date. Such actions shall includeEffective Time, but not be limited to, including using reasonable best efforts to: to (i) comply with and maintain in effect the Debt Commitment Letter; (ii) negotiate, execute and deliver definitive documentation for the Financing that reflects the terms contained in the Commitment Letter (subject to any amendment, supplement, replacement, substitution, termination “market flex” provisions included in the Fee Letter or other modification or waiver that is not prohibited by clause (d) belowany fee letter relating to a Required Alternative Financing); (iiiii) satisfy, satisfy (or obtain seek a waiver thereof, of) on a timely basis all Financing Conditions to of 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 conditions precedent set forth in the Debt Commitment Letter delivered and any definitive document related to the Company on Financing that are within the date hereofcontrol of, Parent and Merger Sub and comply with their obligations thereunder; and (iv) in the event that the Offer Conditions 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 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 enforce their rights under the Debt Commitment Letter and any definitive documentation for the definitive agreements relating 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 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, any Funding Cash. Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or its Affiliates becomes aware; provided that none of Parent or Merger Sub shall be required have the right from time to disclose time to amend, restate, replace, supplement or provide otherwise modify, or waive any such informationof its rights under, the disclosure of which, in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event Commitment Letter and/or substitute other debt financing for all or any portion of the Debt Financing becomes unavailable on from the terms and conditions contemplated by the Debt Commitment Letter same and/or alternative financing sources (including the flex provisions a “Permitted Alternative Financing” and, together with any Required Alternative Financing as described in clause (if anyb) below, each an “Alternative Financing”)) (; provided that any such amendment, restatement, supplement, replacement or other than as a result of the Company’s breach modification to or waiver of any provision of this Agreement or failure to satisfy the conditions set forth in Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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 IXshall 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 its Affiliates shall not the other Merger Amounts or (B) impose new or additional conditions precedent or contingencies to the Financing or otherwise 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 any conditions precedent to the funding of the Debt Financing, (B) reduce the amount or any other term or condition of the Debt Financing Commitment Letter or the net cash proceeds available from Financing, in each case, in a manner that would reasonably be expected to (1) materially delay, prevent or impede the Debt Financing to an amount that is less than consummation of 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)Merger, (C2) prevent or materially delay or make materially less likely the funding of the Debt Financing (or the satisfaction of the Financing Conditionsconditions to obtaining the Financing) on the Closing Date or materially impair, delay or prevent the consummation of the transactions contemplated by this Agreement, including the Offer and the Merger, (D) materially adversely affect Parent’s ability less likely to consummate the transactions contemplated by this Agreement, including the Offer and the Merger occur or (E3) materially adversely impact the ability of Parent or any of its Affiliates’ Merger Sub to enforce their respective its rights against the Debt Financing Sources or any of the other parties to the Debt Commitment Letters Letter or the definitive agreements with respect thereto (clauses (A) through (E)thereto, each an “Adverse Effect on Financing”)in any material respect; provided provided, further, that Parent may, without the prior written consent of the Company, and Merger Sub may amend, modify, supplement, restate, assignreplace, substitute supplement or replace otherwise modify the Debt Commitment Letter, including (1) Letter on one or more occasions to add and appoint additional arrangers, bookrunners, underwritersagents 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, agentsthe definition of “Commitment Letter” shall include any amendment, lenders restatement, supplement or other modification or waiver thereto, or any replacement thereof, in each case permitted by this Section 6.11(a), and similar Debt 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 Entities 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 obtain alternative debt financing from the same or 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 have will still enable Parent and Merger Sub to pay the Merger Consideration and any other Merger Amounts, and which does not executed include any conditions to the Debt Financing Documents consummation of such alternative financing that are more onerous than the conditions set forth in the Commitment Letter as in effect on as of the date hereof and(a “Required Alternative Financing”) and (B) promptly notify the Company of such unavailability and the reason therefor.
(c) Parent shall, in connection therewithupon reasonable request, 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 its efforts to arrange the Debt 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 written notice, which shall include reasonably detailed information regarding the applicable circumstances referenced in the following clauses: (i) if Parent becomes aware of any actual or threatened breach or default by any party to the Commitment Letter or 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 of the Financing; (ii) of the receipt by it 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 Commitment Letter or 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 date in an amount sufficient to fund the Merger Amounts in full on the Closing Date, and (iv) upon consummating the Financing. Any alternativeAs soon as reasonably practicable, substitute after the date the Company delivers Parent or replacement debt financing obtained 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.
(d) From 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 its Subsidiaries to, and shall use its reasonable best efforts to cause its and their respective Representatives to, use reasonable best efforts to provide, Parent and Merger Sub such customary cooperation as may be reasonably requested 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 (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 Financing contemplated by the Commitment Letter in compliance with the terms of this Agreement), including, without limitation, (A) participating (including by teleconference or virtual meeting platforms) (including by making members of senior management, certain representatives and certain non-legal advisors, in each case with appropriate seniority and expertise, available to participate), upon reasonable advance notice, in a reasonable number of 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 (or 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), 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 the foregoing, collectively, the “Offering Documents”), including providing the “MD&A” and business description to be contained therein, and providing customary authorization and representation letters with respect thereto, and (II) materials for any Offering Documents, including business projections and financial statements (including assisting Parent in preparing pro forma financial statements; provided that neither the Company nor any of its Subsidiaries or Representatives shall 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 be made to the 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, (D) 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 named as an “Expert” in any document related to any Financing and (III) provide any customary “comfort letters” (including customary negative assurance comfort, including change period comfort), (F) executing and delivering as of (but not before) the Effective Time, and reasonably assisting Parent 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 extent permitted reasonably requested by this Section 7.18Parent and otherwise facilitating the pledging of, and granting, recording and perfection of security interests in share certificates, securities and other collateral to secure any Financing; provided that the effectiveness of any definitive documentation executed by the Company or any of its Subsidiaries and any such Alternative Financing pledge, grant, recordation or perfection shall be subject to the consummation of the Merger, (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 provisions of this Agreement Financing Sources as may be necessary so that such Required Information qualifies as Compliant prior to the same extent as Closing and (J) facilitating the Debt Financing. Notwithstanding anything to arrangement by Parent of approval of 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 post-Closing boards of directors or equivalent governing bodies of Subsidiaries of the date hereof Company, provided that (including 1) no Persons other than Persons who are directors or equivalent members of 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 boards of financing.direct
Appears in 3 contracts
Sources: Merger Agreement (CMC Materials, Inc.), Merger Agreement (CMC Materials, Inc.), Merger Agreement (Entegris Inc)
Financing. (a) 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 use its reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisable, advisable to arrange and obtain the Debt Financing and to consummate the Debt Financing on the terms and conditions described in the Debt Financing Commitment (provided that Parent and Merger Sub may replace or prior amend the Debt Financing Commitment to add lenders, lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Closing Date. Such actions shall includeDebt Financing Commitment as of the date hereof, but or otherwise so long as the terms would not be limited tomaterially 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: to (i) comply with and maintain in effect the Debt Commitment Letter (subject to any amendmentFinancing Commitment, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below); (ii) satisfy, or obtain a waiver thereof, satisfy on a timely basis all Financing Conditions conditions applicable to the extent within the control of Parent and its Affiliates; (iii) negotiate, execute and deliver Merger Sub to obtaining the 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 Financing 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 consummating the Debt equity financing pursuant to the terms of the Equity Financing Sources to fund the Debt Financing in accordance with the Debt Commitment LetterCommitments), and enforcing Parent’s rights under the Debt Commitment Letter and the (iii) enter into definitive agreements relating to with respect thereto on the Debt Financing).
(b) From terms and conditions contemplated by the date of this Agreement until Financing Commitments or on other terms that would not adversely impact the earlier of the Effective Time ability or the termination of this Agreement in accordance with Article IX, Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or its Affiliates becomes aware; provided that none likelihood of Parent or Merger Sub shall be required to disclose consummate the transactions contemplated hereby and (iv) consummate the Financing at or provide any such information, prior to the disclosure of which, in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or Closing. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by in 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 Section 8.1 and Annex 1)Financing Commitment, then Parent and shall use its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) use reasonable best efforts to arrange to obtain alternative financing from alternative sources in an amount sufficient to consummate 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, transactions contemplated by this Agreement as promptly as practicable following the occurrence of such event; provided, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate principal amount of such alternative financing to shall be funded on the Closing Date or impose additional terms and 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 materially no less favorable than those provided in accordance with Article IX, 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 Commitment, or otherwise on terms and conditions acceptable to Parent. Parent shall give the net cash proceeds available from Company prompt notice of any material breach by any party to the Debt Financing to an amount that is less than the Required Amount (after taking into account Commitments, of which Parent or Merger Sub becomes aware, or 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), (C) prevent or materially delay or make materially less likely the funding of the Debt Financing (or the satisfaction termination of the Financing Conditions) on the Closing Date or materially impair, delay or prevent the consummation of the transactions 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 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, 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 FinancingCommitments. Upon request of the Company, Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of Parent’s its efforts to arrange the Debt Financing and provide copies of all documents related to the Debt Financing (other than any fee 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. Any alternative.
(b) Prior to the Closing, substitute or replacement debt financing obtained the Company shall provide to Parent and Merger Sub, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause the respective officers, employees and advisors, including legal and accounting, of the Company and its Subsidiaries to, provide to Parent and Merger Sub all cooperation reasonably requested by Parent that is necessary in accordance connection with this paragraph the Financing, including using reasonable best efforts to (i) participate in meetings, presentations, road shows, due diligence sessions and the previous paragraph is the “Alternative Financing.” For purposes sessions with rating agencies, (ii) provide assistance in preparation of this Agreement, references confidential information memoranda (including execution and delivery of a customary representation letter) and other materials to “Debt Financing” shall include the be used in connection with obtaining financing contemplated by any Alternative Financing and references to “Debt Commitment Letter”, “Debt Fee Letters”, “the Debt Financing Documents”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 requested by Parent (including a certificate of the chief financial officer of the Company with respect to solvency matters) and otherwise reasonably facilitate the pledging of collateral contemplated by the Debt Financing Entities”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 Sources”, or “Financing” shall include the documents Commitment and (or commitments or financing sources, as applicableB) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with any Alternative 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 prior to the Termination Date; provided, however, that nothing herein shall require such cooperation to the extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply 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 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 not pay or agree to pay any 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 (which shall not be unreasonably withheld or delayed). If this Agreement is terminated pursuant to Section 8.1 or 8.3(b) (but with 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 same extent as Company, reimburse the Debt Financing. Company for all reasonable and documented out-of-pocket costs incurred by the Company or its Subsidiaries in connection with such cooperation.
(c) Notwithstanding anything to the contrary contained set forth in this Agreement, in no event shall Parent Agreement 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 Financing Commitment, the Company and Parent agree that Parent shall have the right, in effect on its sole discretion, to determine the date hereof aggregate principal amount of funded debt to be incurred at Closing to finance the transactions contemplated hereby (including the market flex provisions (if any)“Aggregate Closing Funded Debt”). If at any time prior to February 23, 2007, Parent and Merger Sub expressly acknowledge and agree determines, in its sole discretion, that their obligations 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 have seventy-two (72) hours after receipt of such notice to advise 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, 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 Agreement, including their obligations Section 6.12(c) to consummate the Offer and the Merger, are not subject to, determine Aggregate Closing Funded Debt on one or conditioned on, Parent’s or Merger Sub’s receipt of financingmore occasions so long as it complies with its notice requirements each time it exercises such right.
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. The Company shall, and shall cause its Subsidiaries to, and shall use its commercially reasonable efforts to cause its and its Subsidiaries’ officers, directors, employees, agents, and other representatives (acollectively, “Representatives”) From to, provide all cooperation that is reasonably requested by Parent to assist Parent and the Merger Subs in the arrangement of any third party debt financing (including any debt capital markets financing) for the purpose of funding the payment of the Aggregate Cash Amount and the repayment, redemption, purchase, defeasance or 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 therewith (the “Financing”), including but not limited to (i) as promptly as reasonably practicable, furnishing to Parent and the Financing Sources such financial and other information relating to the Company 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 Financing (“Financing Offering Materials”); (ii) using commercially reasonable efforts to cooperate with the marketing efforts of Parent and the Financing Sources, including using commercially reasonable efforts to participate in a reasonable number of requested meetings with the 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 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 that the Company or any of its Subsidiaries 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 Agreement until Section 5.14 shall require such cooperation to the earlier 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 fees, incur or 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 (in all other cases) to the Company or such Subsidiary therefor), or incur any liability in connection with the Financing that is effective 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 termination of this Agreement in accordance with Article IXEffective Time does not occur. Without limiting the foregoing proviso, Parent agrees, promptly upon request, to reimburse the Company and its Affiliates Subsidiaries for all of their reasonable out-of-pocket costs, fees and expenses (including fees and disbursements of counsel) in connection with the 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). Parent shall use reasonable best efforts to takeindemnify and hold harmless the Company, the Significant Stockholders, its and their respective Affiliates, and its 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 cause cooperation provided, by the Company or its Subsidiaries or any of their respective Representatives at the request of Parent pursuant to be taken, all actions, and 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 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 Debt Financing on or prior to the Closing 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) belowconnection therewith); (ii) satisfyin each case, or obtain a waiver thereof, on a timely basis all Financing Conditions except 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or its Affiliates becomes aware; provided that none of Parent or Merger Sub shall be required to disclose or provide any such informationobligations, the disclosure of whichlosses, in the judgement of Parent upon advice of outside counseldamages, is subject to attorney-client privilege claims, costs, expenses, awards, judgments and penalties, fees, costs or which would be in violation of any confidentiality obligation.
(c) In the event all other liabilities are suffered 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 incurred as a result of the Company’s or its Representatives’ gross negligence, bad faith, willful misconduct or material breach of any provision of this Agreement or failure to satisfy the conditions set forth in Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions contemplated by this Agreement, including as applicable. The Company hereby consents to the Offer use of its and its Subsidiaries’ logos in connection with the MergerFinancing, (D) materially adversely affect Parent’s ability 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 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 agree that the obtaining of the Financing, or any alternative financing, is not a condition to the Closing and reaffirm their obligation to consummate the transactions contemplated by this Agreement, including Agreement irrespective and independently of the Offer and availability of the Merger or (E) materially adversely impact the ability of Parent Financing or any of its Affiliates’ alternative financing, subject to enforce their respective rights against the Debt Financing Sources fulfillment or any waiver 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, bookrunners, underwriters, agents, lenders and similar Debt Financing Entities that have not executed the Debt Financing Documents as conditions set forth 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same extent as the Debt FinancingArticle VI. Notwithstanding anything to the contrary contained provided herein or in this the Confidentiality Agreement, in no event Parent shall Parent or be permitted to share all information subject to such agreements with its Affiliates be required potential financing sources, subject to pay any fees or any interest rates applicable to the Alternative Financing in excess of those contemplated customary confidentiality undertakings 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 financingpotential financing sources with respect thereto.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Sysco Corp), Merger Agreement (Us Foods, Inc.)
Financing. (a) From Subject to the terms and conditions of this Agreement, in the period between the date of this Agreement until hereof and the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXClosing Date, Parent and its Affiliates Merger Sub shall use their respective reasonable best efforts to take, or cause to be taken, all actionsobtain the Financing on substantially the terms and conditions described in the Commitment Letters, 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 Debt Financing on or prior to the Closing 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 amendmentLetters, 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 negotiate definitive agreements with respect 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 in accordance with the terms and conditions contained in the Debt Commitment Letter (including any “market flex” provisions (if any) related thereto) or on such other terms acceptable no less favorable to Parent that would not constitute an Adverse Effect on Financing as compared to those set forth or Merger Sub than the terms and conditions in the Debt Commitment Letter delivered Letter) so that such agreements are effective no later than the Closing, (iii) satisfy prior to the Company on Closing all conditions precedent applicable to Parent and Merger Sub in the date hereof; 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 event that Commitment Letters (or otherwise acceptable to Parent) at or prior to Closing, and (v) enforce the Offer Conditions have been satisfied or waived or, upon funding would be satisfied, consummate rights of Parent and Merger Sub under the Debt Financing (including by instructing Commitment Letters and cause the Debt Financing Sources to fund the Debt 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 LetterLetters and/or the Financing shall be paid by Parent or, and enforcing Parent’s rights under if the Debt Commitment Letter and Closing occurs, the definitive agreements relating to the Debt Financing)Surviving Corporation.
(b) From Without limiting the date generality of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXSection 5.07(a), Parent and its Affiliates Merger Sub shall give the Company prompt written notice of (i) Parent or Merger Sub becoming aware of any material breachbreach by any party to the Commitment Letters, repudiation (ii) the receipt of any written notice or threatened material breach other written communication from any Financing Source with respect to any termination or repudiation by any party to the Debt Commitment Letter of which Parent or its Affiliates becomes aware; provided that none of Letters, (iii) Parent or Merger Sub shall be required to disclose or provide any such information, the disclosure of which, in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation becoming aware of any confidentiality obligation.
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, (civ) In the event 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 Debt Financing becomes unavailable 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 (including y) imposes new or additional conditions precedent to funding or otherwise expands, amends or modifies the flex provisions then existing conditions precedent to funding to the Financing on the Closing, in each case in a manner that would reasonably be expected to (if any)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 a result permitted in clauses (a)-(c) above, in the event that Parent or Merger Sub become aware that any material portion of the Company’s breach of any provision of this Agreement or failure Financing is reasonably likely not to satisfy be available at Closing under the conditions set forth in Section 8.1 and Annex 1)Commitment Letters, then Parent and its Affiliates Merger Sub shall (i) promptly notify in writing the Company thereof of such circumstances and the reasons therefor, therefor and (ii) use their respective reasonable best efforts to obtain alternative financing from alternative financial institutions reasonably acceptable to the same or alternative Debt Financing Entities on terms and conditions, taken as a whole, no Company in an amount sufficient to consummate the transactions contemplated by this Agreement upon conditions not materially less favorable to Parent the Company’s interests than the Financing Conditions, not involving any conditions that would constitute an Adverse Effect on Financing (as defined below) as compared to those set forth in the Debt existing Commitment Letter delivered to the Company on the date hereof, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, Letters as promptly as practicable following the occurrence of such eventevent (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 obtaincause its independent auditors to provide its reasonable cooperation and assistance in connection with the preparation of such pro forma financials) and other materials to be used in connection with obtaining the Debt Financing 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 when obtainedmanagement representation letters, provide (viii) reasonably cooperating in satisfying the Company with a true and complete copy of, a new financing commitment that provides for such alternative financing; provided that any provisions conditions precedent set forth in such new financing commitment the Commitment Letters or any definitive document relating to feesthe Financing (to the extent the satisfaction of such condition requires the cooperation of, pricing termsand is within the control of, “market flex” provisions the Company and its Subsidiaries), including but not limited to (if anyA) 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 terms that are customarily redacted accounts and security arrangements in connection with the foregoing, (including any dates related theretoix) may be redactedissuing customary representation letters to auditors and using reasonable best efforts to obtain legal opinions, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate principal amount of such alternative financing to be funded on the Closing Date or impose additional conditions precedent surveys, title insurance, accountants’ comfort letters and consents to the funding use of such alternative financing on accountants’ audit reports relating to the Closing Date.
Company, (dx) From the date of this Agreement until the earlier executing and delivering, as of the Effective Time Time, any guarantees, pledge and security documents, other definitive financing documents, or the termination of this Agreement in accordance with Article IX, without the prior written consent of the Company, Parent and its Affiliates shall not amend, modify, supplement, restate, assign, substitute other certificates or replace documents contemplated by the Debt Commitment Letter and hedging agreements as may be reasonably requested by Parent or any Merger Sub (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 or provision of guarantees in connection with the Debt Financing Document if Financing), (xi) using reasonable best efforts to obtain such amendmentconsents, modificationapprovals, supplement, restatement, assignment, substitution authorizations and instruments which may reasonably be requested by Parent or replacement would (A) impose additional conditions precedent or expand upon Merger Sub to permit the conditions precedent to the funding consummation of the Debt 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, (Bxii) reduce using reasonable best efforts to ensure that the amount Financing Sources benefit from the existing lending relationships of the Debt Financing or the net cash proceeds available from the Debt Financing Company and its Subsidiaries, (xiii) using its reasonable best efforts to an amount that is less than the Required Amount (after taking into account permit 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), (C) prevent or materially delay or make materially less likely the funding marketable securities of the Debt Financing Company and its Subsidiaries to be made available to Parent and Merger Sub at the Effective Time, and (or the satisfaction xiv) as of the Financing Conditions) on the Closing Date or materially impairEffective Time, delay or prevent taking all corporate actions necessary to authorize the consummation of the transactions contemplated by this Agreement, including Financing and to permit the Offer and the Merger, (D) materially adversely affect Parent’s ability proceeds thereof to consummate the transactions contemplated by this Agreement, including the 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 be made available to the Debt Commitment Letters or Surviving Corporation immediately upon the definitive agreements with respect thereto (clauses (A) through (E), each an “Adverse Effect on Financing”)Effective Time; provided that Parent maythat, 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same extent as the Debt Financing. Notwithstanding notwithstanding anything to the contrary contained in this AgreementAgreement (including this Section 5.07), nothing in no event this Agreement shall Parent require any cooperation to the extent that it would require the Company or any of its Affiliates be required Subsidiaries or representatives, as applicable, to waive or amend any terms of this Agreement or agree to pay any commitment or other fees or reimburse any interest rates applicable expenses or incur any liability prior to the Alternative Financing Effective Time. All non-public information or other confidential information provided pursuant to this Section 5.07 shall be kept confidential in excess accordance with the Confidentiality Agreement, except that Parent and its 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 use of those contemplated its and its Subsidiaries’ logos in connection with the Debt 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, if the Closing has not occurred, promptly upon request by the Debt Commitment Letter as in effect on the date hereof Company or promptly after termination of this Agreement (including the market flex provisions (if any)other than a termination pursuant to Section 7.01(c) 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 anySection 7.01(d)(ii)). Parent , reimburse the Company for all documented reasonable out-of-pocket expenses and Merger Sub expressly acknowledge and agree that their costs incurred in connection with the performance by the Company or other Persons obligated under this Section 5.07 of its 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 financingSection 5.07.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Cole Kenneth Productions Inc), Merger Agreement (Cole Kenneth Productions Inc)
Financing. (a) 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 Acquiror and its Affiliates Merger Sub shall use reasonable best efforts to take, or cause to be taken, as promptly as practicable after the date hereof, all actions, and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisableadvisable (including enforcing its rights under the Subscription Agreements), to arrange and obtain the Debt Financing and to consummate the Debt Financing on or prior to the Closing Date. Such actions shall include, but not be limited toto consummate the purchases contemplated by the Subscription Agreements on the terms and conditions described or contemplated therein, including using its reasonable best efforts to: to (i) comply with and its respective obligations under the Subscription Agreements, (w) 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 Subscription Agreements in accordance with the terms and conditions thereof, (x) satisfy on a timely basis all Financing Conditions conditions and covenants applicable 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 Acquiror set forth in the Debt Commitment Letter delivered applicable Subscription Agreements within its control, (y) consummate the PIPE Investment when required pursuant to the Company on the date hereof; this Agreement, and (ivz) 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 enforce its rights under the Debt Commitment Letter and Subscription Agreements to cause the definitive agreements relating Subscribers to pay to (or as directed by) Acquiror the Debt Financing).
(b) From the date of this Agreement until the earlier of the Effective Time or the termination of this applicable purchase price under each Subscriber’s applicable Subscription Agreement in accordance with Article IX, Parent and its Affiliates terms. Acquiror shall give the Company prompt written notice upon (A) becoming aware of any material 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, repudiation or threatened material breach default, termination or repudiation by any party to the Debt Commitment Letter of which Parent any Subscription Agreement or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation provisions of any confidentiality obligation.
Subscription Agreement and (cC) In the event if Acquiror does not expect to receive all or any portion of the Debt Financing becomes unavailable PIPE Investment Amount on the terms and conditions terms, in the manner or from the sources 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 Section 8.1 and Annex 1), then Parent and its Affiliates Subscription Agreements. Acquiror shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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 maynot, 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, restatewaive, assignassign or terminate any provision or remedy under, substitute or replace the Debt Commitment Letterany replacements of, including any Subscription Agreement.
(1b) 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 If all or a any portion of the Debt Financing and/or PIPE Investment becomes unavailable, (4i) 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 Acquiror shall promptly notify the Company, Parent shall keep (ii) Acquiror and the Company informed shall mutually cooperate in good faith and Acquiror and the Company shall promptly use its reasonable detail best efforts to promptly obtain the PIPE Investment or such portion of the status PIPE Investment from alternative sources in an amount, when added to any portion of Parent’s 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 arrange enter into a new subscription agreement (each, an “Alternative Subscription Agreement”) that provides for the Debt Financing. Any alternative, substitute or replacement debt financing obtained by Parent subscription and purchase of Acquiror Common Stock at $10.00 per share and containing terms and conditions not less favorable in accordance with this paragraph the aggregate from the standpoint of Acquiror and the previous paragraph is Company than those in the “Alternative Financing.” For purposes Subscription Agreements entered into as 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 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 as determined by the market flex provisions Company (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 anyits sole discretion)). Parent and Merger Sub expressly acknowledge and agree that their obligations under In such event, the term “PIPE Investment” as used in this AgreementAgreement shall be deemed to include any Alternative PIPE Investment, including their obligations the term “Subscription Agreements” as used in this Agreement shall be deemed to consummate the Offer include any Alternative Subscription Agreement and the Mergerterm “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 doubt, are not if all or any portion of the PIPE Investment or Alternative PIPE Investment becomes unavailable, in each case subject toto the prior written consent of the Company (in its sole discretion) Acquiror may utilize deposits, proceeds or conditioned onany other amounts from the Trust Account and, Parent’s or Merger Sub’s receipt of financingto the extent acceptable to the Company, any additional third party financing to satisfy its financing obligations hereunder.
Appears in 2 contracts
Sources: Merger Agreement (Spring Valley Acquisition Corp.), Merger Agreement (Spring Valley Acquisition Corp.)
Financing. (a) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXBuyer, Parent Holdings and its Affiliates Merger Sub shall use their 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 Debt Financing on or prior to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: (i) comply with arrange for the Financing on the terms and maintain conditions described 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)Letters; (ii) satisfy, or obtain a waiver thereof, on a timely basis all Financing Conditions enter into definitive agreements with respect to the extent within the control of Parent and its AffiliatesFinancing; (iii) negotiatesatisfy all conditions applicable to Buyer, execute Holdings 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 Merger Sub in the Debt Commitment Letter (including any “market flex” provisions (if any) related thereto) or on such other terms acceptable to Parent definitive agreements 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 hereofare within their control; 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 no later than the earlier of (A) the Effective Time or last day of the termination of this Agreement in accordance with Article IX, Parent Marketing Period and its Affiliates shall give (B) the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) Final Date. In the event all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by in the Debt Commitment Letter (including the flex provisions (if any)) (other than as a result of the Company’s breach of Letters for any provision of this Agreement or failure to satisfy the conditions set forth in Section 8.1 and Annex 1)reason, then Parent and Buyer shall use its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amountsources, as promptly as practicable following the occurrence of such event, but in no event later than the earlier of (A) the last day of the Marketing Period and (iiiB) use the Final Date; provided that such obligation shall be limited to obtaining alternative financing on comparable or more favorable terms, in the aggregate, to Buyer than as contemplated by the Commitment Letters (as determined in the reasonable best efforts to obtain, and when obtained, good-faith judgment of Buyer). Buyer shall promptly (but in any event within five (5) Business Days) provide the Company with a true and complete copy of, a new financing commitment that provides for such the documentation evidencing the 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), financing and shall give the Company prompt notice (Cbut in any event within five (5) prevent or materially delay or make materially less likely the funding Business Days) of the Debt Financing it (or the satisfaction of the Financing Conditions) on the Closing Date or materially impair, delay or prevent the consummation of the transactions 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 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 Equity Sponsors or IAAI) becoming aware of any material breach by any party 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 any termination 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 FinancingLetters. Upon request of the Company, Parent Buyer shall keep the Company informed on a reasonably current basis in reasonable detail of the status of Parent’s 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 (A) the last day of the Marketing Period and (B) the Final Date, or (y) 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 the proceeds from the Debt Financing. Any alternative, substitute ) have been satisfied; and (Z) the bridge facilities contemplated by the Debt Commitment Letters (or replacement debt alternative bridge financing obtained by Parent in accordance with this paragraph Agreement) are available on the terms and conditions described in 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 Letters (or commitments or replacements thereof), then Buyer, Holdings and Merger Sub shall cause the proceeds of such bridge financing sources, as applicableto be used to replace such high yield financing no later than the earlier of (A) the last day of the Marketing Period and (B) the Final Date.
(b) The Company shall and shall cause its Subsidiaries and their respective Representatives to provide to Buyer all reasonable cooperation in connection with any Alternative the arrangement of the Financing to the extent permitted as may be reasonably required by this Section 7.18, and Buyer (provided that such Alternative Financing shall be required to comply requested cooperation does not unreasonably interfere with the provisions ongoing operations of this Agreement to the same extent as Company and its Subsidiaries; and provided, further, that none of the Debt Financing. Notwithstanding anything to the contrary contained in this Agreement, in no event Company nor any of its Subsidiaries shall Parent or its Affiliates be required to pay any fees commitment or other fee or incur any other liability in connection with the Financing prior to the Effective Time) 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 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 interest rates applicable 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 Alternative Financing extent so required, and the other accounting rules and regulations of the SEC, that is of the type and form customarily included in excess 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 those debt securities contemplated by the Debt Commitment Letter 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 effect 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, 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 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 or any 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. If this Agreement is terminated for any reason, Buyer shall use reasonable best efforts to cause the voiding, termination and/or destruction of all documents executed by the Company or any of its Subsidiaries in connection with their cooperation in the Financing. For the avoidance of doubt, the Company’s obligation to reasonably cooperate with Buyer in connection with the arrangement of the 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 hereof, (including ii) any new or substitute Equity Sponsors enter into guarantees with the market flex provisions Company on substantially the same terms as the Guarantee, (if any)iii) the New Commitment Letters provide for bridge financing on comparable or agree more favorable terms, in the aggregate, to any term (including any market flex term (if any)) less favorable (taken as a whole) to Parent Buyer than such term contained in the terms contemplated by the Debt Commitment Letter as in effect Letters delivered on the date hereof hereof, (including iv) Buyer in good faith believes that the market flex provisions financing contemplated by the New Commitment Letters would not or would not reasonably be expected to result in the Financing not being available at or prior to the earlier of (if any))A) the last day of the Marketing Period and (B) the Final Date, and (v) Buyer provides written notice to the Company of such an occurrence concurrently with notice of the same to the other Equity Sponsors or Lenders, as applicable. Parent In such event, the terms “Commitment Letters,” “Equity Commitment Letters” and Merger Sub expressly acknowledge and agree that their obligations under this Agreement“Debt Commitment Letters” as used herein shall be deemed to include the New Commitment Letters to the extent then in effect, including their obligations to consummate the Offer and the Mergerterm “Equity Sponsors” as used herein shall be deemed to include any new or substitute equity sponsors; provided, are 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 subject to, or conditioned on, Parent’s or Merger Sub’s receipt this Section 6.13(d) shall govern with respect to the terms of financingany 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) From The parties hereto acknowledge that Parent may attempt to arrange third party debt financing for the date purpose of funding the transactions contemplated by this Agreement until (the earlier of “Debt Financing”) and, if Parent so chooses to seek the Debt Financing, prior to the Effective Time or the termination of this Agreement in accordance with Article IXTime, Parent Company shall use, and shall cause its Affiliates Subsidiaries to use, reasonable best efforts to provide, and shall use reasonable best efforts to take, cause any Representatives retained by Company or cause any of its Subsidiaries to be taken, all actions, and use reasonable best efforts to doprovide, or cause to be donein each case at Parent’s sole cost and expense, all things reasonably necessary or advisable, to arrange and obtain such cooperation in connection with the arrangement of the Debt Financing as may be reasonably requested by ▇▇▇▇▇▇, including (i) participation in a reasonable number of teleconferences, meetings including rating agency meetings, drafting sessions, presentations, road shows and due diligence sessions, in each case upon reasonable advance notice and at mutually agreeable dates and times, and to consummate otherwise assist the providers of the Debt Financing on in obtaining ratings in connection with the Debt Financing, (ii) make available to Parent, its advisors or its Debt Financing Sources such financial and other pertinent information regarding Company and the Company Subsidiaries as may be reasonably requested by Parent, its advisors or its Debt Financing Sources, including (I) the unaudited financial statements of the Company for each fiscal quarter of the Company ended at least forty-five (45) days prior to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: and the audited financial statements of the Company for any fiscal year of the Company ended at least ninety (i90) 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 days prior to the extent within the control of Parent Closing and (II) such information as is reasonably necessary to allow Parent, its advisors and its Affiliates; Debt Financing Sources to prepare pro forma financial statements (it being understood that Parent, and not Company or any of its Subsidiaries, shall be responsible for the preparation of the pro forma financial statements and any other pro forma information, including any pro forma adjustments), (iii) negotiate, execute reasonably assisting Parent 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 in the preparation of lender and investor presentations, rating agency presentations, bank information memoranda, marketing materials and other similar documents and materials in connection with the Debt Financing, (iv) reasonably cooperating and otherwise assisting with marketing efforts of Parent and 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or Sources for 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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, (Bv) reduce facilitating the amount granting of a security interest (and perfection thereof) in collateral, including obtaining releases of existing Liens, provided that no security interest and no release of existing Liens shall be effective until the Debt Financing Closing, (vi) assisting in the preparation, execution and delivery (limited, in the case of execution and delivery, solely to officers continuing with Company and the Company Subsidiaries after the Closing) of one 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 handmore credit agreements, available lines of credit (including under Borrowerindentures, purchase agreements, pledge and security documents, customary secretary’s existing revolving credit and securitization facilities) certificates and other sources of immediately available funds)definitive documentation, (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 transactions contemplated in each case as may be reasonably required 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 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 mayany such agreements, without documents and related certificates and instruments shall be subject to the prior written consent occurrence of the Company, amend, modify, supplement, restate, assign, substitute or replace Closing and become effective no earlier than 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 appointmentsClosing, (2vii) modify pricingcausing the taking of corporate, limited liability or other organizational actions (3) terminate or reduce any commitments under subject to the Debt Financing in order to obtain alternative sources of debt financing in lieu of all or a portion occurrence of the Debt Financing and/or (4Closing) increase by the aggregate amount Company reasonably necessary to permit the consummation of the Debt Financing, in each case, so long as such amendments would not be reasonably expected (viii) executing and delivering (A) customary authorization letters 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 Financing Sources authorizing the distribution of information regarding Company to prospective lenders 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) investors in connection with any Alternative the Debt Financing and containing a customary representation that the public side versions of such documents do not include material non-public information about Company and its Subsidiaries or their securities, and a customary representation as to the extent permitted by this Section 7.18accuracy of the written information contained in the disclosure and marketing materials regarding Company and its Subsidiaries, subject to customary exceptions and qualifications, and such Alternative Financing shall be required (ix) furnishing to comply with the provisions of this Agreement Parent and its lenders promptly (and in any event at least five (5) Business Days prior to the same extent Closing Date) with all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and beneficial ownership regulations (including beneficial ownership certifications as under 31 C.F.R. § 1010.230), and requested by the Debt FinancingFinancing Sources in writing at least ten (10) Business Days prior to the Closing Date. Notwithstanding anything to the contrary contained herein, nothing in this Section 6.13(a) shall require any such cooperation or assistance to the extent that it could result in Company or any of its Subsidiaries being required to (1) pledge any assets as collateral prior to the Effective Time, (2) incur any liability (including payment of fees) in connection with the Debt Financing prior to the Effective Time, (3) take any actions to the extent such actions would or could reasonably be expected to (I) unreasonably interfere with the ongoing business or operations of Company or any of its Subsidiaries, (II) reasonably be expected to subject any director, manager, officer or employee of Company or any of its Subsidiaries to any actual or potential personal liability, (III) conflict with, or result in any violation of or default (or an event that, with or without notice or lapse of time or both, would become a default) under, or give rise to a right of termination, cancelation or acceleration of any obligation or to loss of a material benefit under, or to increased, additional, accelerated or guaranteed rights or entitlements (other than de minimis increased, additional, accelerated or guaranteed rights or entitlements) of any Person under, or result in the creation, prior to the Effective Time, of any Lien upon any of the properties or assets of Company or any of its Subsidiaries under, any provision of (x) the certificate or articles of incorporation, bylaws or comparable organizational documents of Company or any of its Subsidiaries (in each case, not entered into in contemplation of this Section 6.13(a)), (y) any Contract to which Company or any of its Subsidiaries is a party or by which any of their respective properties, assets or businesses is bound (in each case, not entered into in contemplation of this Section 6.13(a)) or (z) any Judgment or Law applicable to Company or any of its Subsidiaries or their respective properties, assets or businesses, (IV) prior to the Effective Time, require any such entity to change any fiscal period, or (V) cause (x) any representation or warranty set forth in Article IV or Article X of this Agreement to be inaccurate or breached, (y) any closing condition set forth in Article VII of this Agreement to fail to be satisfied or (z) any other breach of this Agreement, any other Transaction Document or any CSG-Vista Outdoor Transaction Document, (4) commit to take any action under any certificate, document or instrument that is not contingent upon the Closing, (5) provide access to or disclose information that Company reasonably determines could (I) jeopardize any attorney-client privilege, attorney work product protection or other legal privilege of, or conflict with any confidentiality requirements applicable to, Company or any of its Subsidiaries, (II) expose Company or any of its Subsidiaries to risk of liability for disclosure of sensitive or personal information or (III) result in the disclosure of trade secrets or competitively sensitive information to third parties, (6) cause any director, manager or equivalent of Company or any of its Subsidiaries to pass resolutions to approve the Debt Financing or authorize the creation of any agreements, documents or actions in connection therewith (other than any director, manager or equivalent of Company or any of the Company Subsidiaries who will continue in such a position following the Closing and the passing of such resolutions), in each case that are not contingent on the Closing or would be effective prior to the Effective Time, (7) deliver any opinion of counsel (other than customary opinions of counsel delivered in connection with the definitive agreements for the Debt Financing at the Closing) or (8) require Company or any of the Company Subsidiaries or Vista Outdoor or any of its Subsidiaries to prepare any financial statements or other information that is not reasonably available to Company or any of the Company Subsidiaries or Vista Outdoor or any of its Subsidiaries.
(b) Parent shall be responsible for all fees and expenses related to the Financing contemplated hereby. Accordingly, notwithstanding anything to the contrary in Section 6.06, Parent shall promptly reimburse Company and each of its Subsidiaries for all reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by Company or such Subsidiary in connection with their cooperation pursuant to Section 6.13(a) in connection with the Financing. Parent shall indemnify and hold harmless Company and each of its Subsidiaries and all of their respective directors, officers, managers, employees and Representatives from and against any and all Liabilities suffered or incurred by them in connection with the arrangement of the Financing, their assistance pursuant to this Section 6.13 or otherwise or any information utilized in connection therewith, in each case other than as a result of fraud, bad faith, gross negligence or willful misconduct by or on behalf of such Person. Notwithstanding anything to the contrary in this Agreement, in no event prior to the Effective Time, neither Company nor any of its Subsidiaries shall Parent or its Affiliates be required to pay have any fees Liability under any loan agreement or any interest rates applicable related document or any other agreement or document related to the Alternative Financing in excess Financing.
(c) For the avoidance 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 doubt, ▇▇▇▇▇▇ and Merger Sub Sub, on behalf of themselves and their respective Affiliates, expressly acknowledge and agree that (i) their obligations under this Agreement, including their respective obligations to consummate the Offer and the Merger, Transactions are not subject toto any condition or contingency with respect to receipt of the Financing and (ii) the condition set forth in Section 7.03(b), as applied to the obligations of Company under this Section 6.13, shall be deemed to be satisfied unless (A) Company has materially breached its obligations under this Section 6.13, (B) Parent has notified Company of such breach in writing in good faith, detailing in good faith reasonable steps that comply with this Section 6.13 in order to cure such breach, and (C) Company has not taken such steps or otherwise cured such breach with reasonably sufficient time prior to the End Date and the Debt Financing has not been consummated as a result of such breach.
(d) Company hereby consents to the use of its and the Company Subsidiaries’ trademarks, trade names and logos, in each case relating to the Company Business, in connection with the Financing; provided that (i) such trademarks, trade names and logos are used solely in a manner that is not intended, or conditioned onreasonably likely, Parentto harm or disparage Company or any Company Subsidiaries or the reputation or goodwill of Company or the Company Subsidiaries and (ii) such use is subject to Company’s or Merger Sub’s receipt of financingreasonable review in advance thereof.
Appears in 2 contracts
Sources: Merger Agreement (Vista Outdoor Inc.), Merger Agreement (Revelyst, Inc.)
Financing. (a) From Each of Holdings, Parent and Merger Sub shall (i) 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 arrange, obtain and consummate the date of this Agreement until Debt Financing on the earlier of terms and conditions described in the Effective Time or Debt Commitment Letter (including, to the termination of this Agreement extent required in accordance with Article IXthe terms thereof, the exercise of so-called “flex” provisions in the Fee Letter), including using reasonable best efforts to (A) satisfy on a timely basis all conditions precedent to funding applicable to Parent and Merger Sub in the Debt Commitment Letter and the Financing Agreements to be entered into pursuant thereto and in the Equity Commitment Letter and, upon the satisfaction or waiver of all of the conditions set forth in Sections 7.1 and 7.3, such Commitment Letters and such Financing Agreements, to consummate the Financing no later than the Closing in accordance with Section 2.2, and (B) maintain in full force and effect the Commitment Letters until the funding of the Financing and to negotiate, execute and deliver definitive agreements with respect to such Debt Financing consistent with the terms and conditions contemplated by the Debt Commitment Letter (subject to any applicable “flex” provisions of the Fee Letter) or, if applicable, on terms that are no less favorable to Parent and Merger Sub than the terms contained in the Debt Commitment Letter (taking into account any “flex” provisions applicable thereto) (the “Financing Agreements”), (ii) upon the satisfaction of all conditions precedent to funding in the Debt Commitment Letter and the Financing Agreements, enforce the obligations of the Financing Sources to fund the Debt Financing, and (iii) comply in all material respects with their obligations under the Commitment Letters and the Financing Agreements, to the extent within their control. Upon the reasonable request of the Company, Parent shall reasonably promptly update the Company in reasonable detail of any material developments concerning the status of the Debt Financing. Parent and its Affiliates Merger Sub shall provide the Company, upon reasonable request, with copies of any Financing Agreements and such other information and documentation regarding the Debt Financing as shall be reasonably necessary to allow the Company to monitor the progress of such financing activities. In the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (subject to any applicable “flex” provisions of the Fee Letter), (A) Parent shall notify the Company, and (B) Parent shall use reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisable, advisable to arrange to obtain alternative financing from alternative sources (the “Alternative Financing”), upon terms and obtain the Debt Financing and conditions not less favorable to consummate the Debt Financing on or prior to the Closing 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 Merger Sub than 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 and conditions 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, aggregate amount that, when taken together with the aggregate proceeds contemplated by the Equity Commitment Letter and the available portion of the Debt Financing that remains and cash and cash equivalents available to Parent and Merger Sub, would be sufficient to pay the aggregate Cash Merger Consideration to be paid by Merger Sub at the Closing and any cash on handother amounts required to be paid by Parent and Merger Sub at the Closing in connection with the consummation of the transactions contemplated hereby, available lines and to pay all related fees and expenses of credit (including under Borrower’s existing revolving credit Holdings, Parent and securitization facilities) and other sources of immediately available fundsMerger Sub required to be paid at the Closing in connection therewith. In the event any Alternative Financing is obtained in accordance with this Section 6.22(a), is at least equal references in this Agreement to the Required AmountDebt Financing shall be deemed to refer to such Alternative Financing to the extent the Debt Financing has been replaced thereby, as promptly as practicable following if one or more commitment letters are entered into in connection with such Alternative Financing (such commitment letters, the occurrence of such event“Alternative Debt Commitment Letter”), references in this Agreement to the Debt Commitment Letter shall be deemed to refer to the Alternative Debt Commitment Letter to the extent the Debt Commitment Letter has been replaced thereby, and (iiiall obligations of Parent, Merger Sub and the Company pursuant to this Section 6.22(a) use reasonable best efforts shall be applicable thereto to obtainthe same extent as the obligations of Parent, Merger Sub and when obtained, provide the Company with a true and complete copy ofrespect to the Debt Financing replaced thereby. None of Holdings, a Parent or Merger Sub shall permit or consent to (1) any amendment, supplement or modification to, or any waiver of any provision under, any Commitment Letter if such amendment, supplement, modification or waiver (w) imposes new financing commitment that provides for such alternative financing; provided that or additional conditions, or otherwise expands any provisions of the conditions, to the initial funding of the Financing at Closing from those set forth in such new financing commitment relating to feestherein on the date hereof, pricing terms, “market flex” provisions (if anyx) and other terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce materially and adversely impact the aggregate principal amount ability of such alternative financing Parent or Merger Sub to be funded on enforce its rights against the Closing Date or impose additional conditions precedent other parties to the funding of such alternative financing on the Closing Date.
applicable Commitment Letter (d) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXprovided, without the prior written consent of the Company, that Parent and its Affiliates shall not amend, modify, supplement, restate, assign, substitute Merger Sub may replace or replace amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or any similar entities that have not executed the 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 Commitment Letter as 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 existing revolving credit and securitization facilities) and other sources of immediately available fundsdate hereof), (Cy) prevent or would reasonably be expected to materially impair, materially delay or make materially less likely prevent the funding availability of the Debt Financing (all or the satisfaction a portion of the Financing Conditions) on the Closing Date or materially impair, delay or prevent the consummation of the transactions contemplated by this Agreement, including or (z) would reduce the Offer aggregate cash amount of the Financing to an amount that, when taken together with other funds available to Parent, Merger Sub and the MergerSurviving Corporation, (D) materially adversely affect Parent’s ability is not sufficient to consummate pay the aggregate Cash Merger Consideration to be paid by Merger Sub at the Closing and any other amounts required to be paid by Holdings, Parent and Merger Sub at the Closing in connection with the consummation of the transactions contemplated by this Agreementhereby and to pay all related fees and expenses of Holdings, including Parent and Merger Sub required to be paid at the 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, 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, Closing in connection therewith, amend the economic and other arrangements with respect to such appointments, or (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 early termination of the Debt Financing and/or Commitment Letter (4other than in connection with Alternative Financing) increase or the aggregate amount Equity Commitment Letter. Parent shall furnish to the Company a copy of the Debt Financingany amendment, modification or waiver of any Commitment Letter following execution thereof, in each case, so long as such amendments would not to the extent entered into prior to the Closing; provided, that any amendment to the Fee Letter may 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 redacted to the extent permitted under Section 5.11. Parent shall promptly notify the Company in writing (I) of any 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 any Commitment Letter or Financing Agreement of which Parent obtains knowledge, (II) of the receipt by any of Holdings, Parent, Merger Sub or any of their respective Affiliates or Representatives of any written notice or other written communication from any Financing Source with respect to any actual, threatened or alleged material breach, default, termination or repudiation by any party to any Commitment Letter or any Financing Agreement or any provision of the Financing contemplated pursuant to the Commitment Letters or Financing Agreement (including any proposal by any Financing Source to withdraw, terminate or make a material change in the terms of (including the amount of Financing contemplated by) the Commitment Letters), (III) if for any reason any of Holdings, 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, in the manner or from the sources contemplated by the Commitment Letters or the Financing Agreements and (IV) of the termination or expiration prior to Closing of any Commitment Letter or Financing Agreement. As soon as reasonably practicable, Holdings, Parent and Merger Sub shall provide any material information reasonably requested by the Company relating to any of the circumstances referred to in this Section 7.186.22(a).
(b) Prior to the Closing, the Company agrees to use reasonable best efforts to provide, and such Alternative Financing shall be required use reasonable best efforts to comply cause its Subsidiaries and their respective officers, directors, employees, accountants, consultants, investment bankers, legal counsel, agents, financial advisors and other advisors and representatives (collectively the “Representatives”) to provide, all cooperation in connection with the provisions arrangement of this Agreement to the same 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 may be reasonably requested by Parent, including: (i) furnishing Parent and the Commitment Parties, as promptly as practicable, with the Required Bank Information and all other available pertinent information and disclosures relating to the Company and its Subsidiaries (including businesses, operations, financial projections and prospects) as may be reasonably requested by Parent in order to consummate the Debt Financing; (ii) participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as arrangers or agents for, and prospective lenders and purchasers of, the Debt Financing and senior management and representatives (with appropriate seniority and expertise) of the Company and its Subsidiaries), presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders and investors and ratings agencies in connection with the Debt Financing; (iii) assisting Parent and the Commitment Parties in the preparation of any offering documents, private placement memoranda, lender presentations, bank information memoranda, materials for rating agency presentations, projections and similar documents reasonably required in connection with the Debt Financing (including the execution and delivery of customary representation or authorization letters (the “Authorization Documents”)); (iv) facilitating the execution and delivery at the Closing of definitive documents related to the Debt Financing on the terms contemplated by the Debt Commitment Letter and which will become effective at or after the Effective Time and, to the extent reasonably requested by Parent, making available appropriate members of the Company’s senior management to assist in the negotiation of any such agreements and other documents and instruments; (v) facilitating the providing of guarantees and the granting of security interests (and perfection thereof) in collateral and the obtaining of environmental assessments, third-party consents, surveys and title insurance at the sole expense of, and as reasonably requested by, Parent; provided, that no perfected security interest, pledge or guarantee shall be effective until the Effective Time; (vi) requesting from the Company’s existing lenders such consents, approvals, authorizations and instruments which may be reasonably requested by Parent in connection with the Debt Financing and collateral arrangements, including customary payoff letters, lien terminations, instruments of termination or discharge to be delivered at the Closing providing for the payoff, discharge 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; (vii) providing to Parent and the Commitment Parties all documentation and other information required by regulatory authorities with respect to the Company and its Subsidiaries under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, in any case as is requested in writing by Parent at least ten (10) Business Days prior to the Closing Date; and (viii) obtaining legal opinions, landlord and mortgagee waivers, bailee letters and similar documents customary for financings similar to the Debt Financing. The Company further agrees to supplement reasonably promptly the information provided pursuant to this Section 6.22(b) to the extent that any such information, to the knowledge of the Company, contains any material misstatement of fact or omits to state any material fact necessary to make such information not misleading in any material respect. Notwithstanding the foregoing, except to the extent of the execution and delivery of the Authorization Documents: (A) such requested cooperation shall not unreasonably interfere with the business or the ongoing operations of the Company and/or the Company’s Subsidiaries; (B) nothing in this Section 6.22(b) shall require cooperation to the extent that it would (1) cause any condition to the Closing set forth in Sections 7.1 or 7.3 to not be satisfied or otherwise cause any breach of this Agreement or (2) reasonably be expected to conflict with or violate the Company’s organizational documents or any Legal Requirement, or result in the contravention of, or result in a violation or breach of, or default under, any Material Contract; (C) prior to the Closing Date, neither the Company nor any of its Subsidiaries shall be required to pay any commitment or other similar fee or incur any other liability or obligation in connection with the financings contemplated by the Debt Commitment Letter except in the case of expenses that are advanced or reimbursed as provided in Section 6.22(c); (D) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the financing contemplated by the Debt Commitment Letter that is not contingent upon the Closing or that would be effective prior to the Closing Date; and (E) nothing shall obligate the Company or any of its Subsidiaries to provide, or cause to be provided, any legal opinion by its counsel, or to provide any information or take any action to the extent it would result in a violation of applicable Legal Requirements. Notwithstanding anything in this Agreement to the contrary, without limiting the Company’s cooperation obligations under this Section 6.22(b) with respect to any Alternative Financing Commitment Letter or Alternative Financing, if (i) Parent seeks to obtain any Alternative Financing Commitment Letter or Alternative Financing, (ii) the cooperation required to be provided pursuant to this Section 6.22(b) in connection with such Alternative Financing Commitment Letter or Alternative Financing is more onerous to the Company than what is required to be provided pursuant to this Section 6.22(b) with respect to the Debt Commitment Letter in effect on the date hereof and without giving effect to any Debt Financing Commitment Letter or the Debt Financing contemplated thereunder (including to the market flex provisions extent more onerous, the “Incremental Debt Financing Cooperation”), and (if anyiii) the Company fails to provide any portion of such Incremental Debt Financing Cooperation, then such failure to provide such Incremental Debt Financing Cooperation (A) shall not be deemed to be a breach of this Section 6.22(b) for purposes of Article VIII of this Agreement and (B) shall not be the basis for a determination of non-compliance with clause (a) of the definition of “Marketing Period” (it being understood that this sentence shall in no way apply to the Company’s cooperation obligations under this Section 6.22(b) with respect to any Alternative Financing Commitment Letter or Alternative Financing that does not constitute Incremental Debt Financing Cooperation). 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, nor reasonably likely to, harm or disparage the Company or its Subsidiaries.
(c) None of the Company, the Company’s Subsidiaries and their respective officers, directors, employees, accountants, legal counsel and other Representatives shall be required to take any action that would subject such Person to actual or potential liability, to bear any cost or expense or 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 term (including any market flex term (if any)) less favorable (taken as a whole) to Parent than such term contained indemnity in connection with 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.D
Appears in 2 contracts
Sources: Merger Agreement (Symmetry Surgical Inc.), Agreement and Plan of Merger (Symmetry Medical Inc.)
Financing. (a) From 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 Agreement until the earlier (including Section 6.09(b) and Section 6.10), each of the Effective Time or the termination of this Agreement in accordance with Article IX, Parent and its Affiliates Sub shall use its reasonable best efforts (taking into account the anticipated timing of the Marketing Period) to take, or cause to be taken, take all actions, and use reasonable best efforts to do, or cause to be done, do all things reasonably necessary necessary, proper or advisable, advisable to arrange and obtain the proceeds of the Financing (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 Merger Closing) on the terms and conditions (including the related flex provisions) described in the Financing Commitments and the Fee Letter, including using its reasonable best efforts to consummate (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 or prior to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: terms and conditions (iincluding the flex provisions) comply with and maintain in effect contemplated by the Debt Financing Commitment and the Fee 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 provide copies thereof to the Company promptly upon their execution and otherwise keep the Company reasonably informed on a reasonably current basis of the date hereof; 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 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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)provisions) contained in the Debt Financing Commitment and the Fee Letter (other than as due to the failure of a result condition to the consummation of the Company’s Debt Financing resulting from a breach of any provision representation, warranty, or covenant of this Agreement or failure to satisfy the conditions Company set forth in Section 8.1 and Annex 1this Agreement), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 same 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 Entities debt financing (unless Parent and Sub otherwise determine in their sole discretion) on terms and conditions, taken as a whole, no conditions (including flex provisions) that are less favorable to the interests of Parent and Sub than the Financing Conditions, not involving any conditions that would constitute an Adverse Effect on Financing (as defined below) as compared to those set forth terms contained in the Debt Financing Commitment Letter delivered and the Fee Letter. Parent shall give the Company prompt notice of any breach by any party to any of the Financing Commitments of which Parent or Sub becomes aware, or any termination of any of any of the Financing Commitments. Parent shall promptly deliver to the Company on the date hereof, that, when taken together true and complete copies of all agreements pursuant to which any such financing source shall have committed to provide Parent and Sub with the any portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 AgreementSection 6.09, Section 6.10 and Section 5.03, references to “Financing” and “Debt Financing” shall include the financing contemplated by any Alternative the Financing Commitments as permitted by this Section 6.09 to be amended, modified or replaced and references to “Debt Commitment Letter”, “Debt Fee LettersFinancing Commitments”, “Debt Financing Documents”, Commitment” and “Debt Financing Entities”, “Debt Financing Sources”, or “FinancingFee Letter” shall include the such documents (or commitments or financing sources, as applicable) in connection with any Alternative Financing to the extent permitted by this Section 7.186.09(a) to be amended, modified or replaced, in each case from and after such Alternative Financing shall be required to comply with the provisions of this Agreement to the same extent as the Debt Financing. amendment, modification or replacement.
(b) 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 Affiliates be required respective rights under the Equity Financing Commitment, except that Parent shall use its reasonable best efforts 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 Agreementenforce, including their obligations by bringing suit for specific performance, the Equity Financing Commitment solely if the Company seeks and is granted a decree of specific performance of the obligation to consummate the Offer and Merger Closing after all conditions to the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of financing.granting thereof set forth in Section
Appears in 2 contracts
Sources: Merger Agreement (CD&R Associates VIII, Ltd.), Merger Agreement (Emergency Medical Services CORP)
Financing. (a) From Prior to the date of this Agreement until Effective Time, Allied, A-Sub and B-Sub shall provide to the earlier 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 Effective Time or Allied Credit Facility and the termination Allied Accounts Receivable Facility and, in each case, the release of this Agreement in accordance with Article IX, Parent and its Affiliates collateral thereunder.
(b) Republic shall use reasonable its best efforts to take, or cause to be taken, all actionsthings necessary, proper or advisable to arrange and use 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 do, or cause (A) enter into definitive agreements with respect thereto on terms and conditions acceptable to be done, all things reasonably necessary or advisable, to arrange Allied (in its reasonable discretion) and obtain the Debt Financing and to (B) consummate the Debt Financing on or prior to the Closing DateEffective Time. Such actions Republic shall include, but not be limited to, using reasonable best efforts to: (ix) comply with furnish correct 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 complete copies of 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 Allied promptly upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such eventtheir execution, and (iiiy) use reasonable best efforts to obtain, keep Allied informed on a reasonably current basis and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 its efforts to arrange the Debt Financing. Any alternative, substitute or replacement debt financing obtained by Parent in accordance Financing and shall give Allied prompt notice of any material adverse change with this paragraph respect to such Debt Financing and (z) use its best efforts to cause the lenders and the previous paragraph is other Persons providing such Debt Financing to fund the “Alternative Financing.” For purposes of this Agreement, references Debt Financing on the Closing Date (including taking enforcement action to “cause such lenders and other Persons to provide such 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 ). Prior to the extent permitted by this Section 7.18Closing, Allied shall use its reasonable best efforts to cooperate with Republic in arranging, consummating and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same extent as funding the Debt Financing. , and if requested by Republic, the refinancing of the Republic Credit Facility, including making Allied’s officers available to the arrangers of the Debt Financing and such refinancing and potential lenders, and providing such information reasonably requested by the arrangers of the Debt Financing and such refinancing and potential lenders.
(c) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Parent Republic acknowledges and agrees that the consummation of the Merger is not conditional upon receipt by Republic or any of its Affiliates of the proceeds of the Debt Financing.
(d) Each of Republic and Allied shall use its respective best efforts to not do, and to not cause or permit to be required done, anything that would reasonably be expected to pay cause the condition to closing set forth in Section 8.03(e) to not be satisfied and shall use its respective best efforts to take any fees or any interest rates applicable actions necessary (subject 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 (other’s consent if any)46 required pursuant to Section 6.01(a) or agree to any term (including any market flex term (if anySection 6.01(b)) less favorable (taken , as a wholeapplicable) to Parent than such term contained ensure that the condition to closing set forth 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 financingSection 8.03(e) is satisfied.
Appears in 2 contracts
Sources: Merger Agreement (Allied Waste Industries Inc), Merger Agreement (Republic Services Inc)
Financing. (ai) From Parent has delivered to the Company true, complete and fully executed copies of the commitment letter (including all related exhibits, schedules, annexes, supplements and term sheets attached thereto, and including any related fee letter as described below, as each of the foregoing may be amended, supplemented, replaced, substituted, terminated or otherwise modified or waived from time to time after the date hereof in compliance with Section 6.13, the “Debt Commitment Letter”) from the Debt Financing Sources party thereto, confirming their respective commitments to provide Parent or any of this Agreement until its Affiliates with debt financing in connection with the earlier transactions contemplated hereby in the amount set forth therein (the “Debt Financing”).
(ii) The Debt Commitment Letter is in full force and effect and is a valid and binding obligation of Parent or its Affiliates party thereto and, to the Effective Time knowledge of Parent, the other parties thereto, enforceable against Parent or its Affiliates party thereto and, to the termination knowledge of this Agreement Parent, the other parties thereto in accordance with Article IXits terms (subject to applicable bankruptcy, Parent insolvency, fraudulent transfer, reorganization, moratorium and its Affiliates shall use reasonable best efforts to takeother laws affecting creditors’ rights generally and general principles of equity). As of the date hereof, 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 Debt Financing on or prior to the Closing 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 amendmenthas not been amended or modified, 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 and 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 commitments contained in the Debt Commitment Letter (including any “market flex” provisions have not been withdrawn, rescinded or otherwise modified. All fees (if any) related thereto) or on such other terms acceptable required 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 paid under the Debt Commitment Letter and the definitive agreements relating on or prior to the Debt Financing).
(b) From date hereof have been paid in full. As of the date of this Agreement until the earlier Agreement, no event has occurred which, with or without notice, lapse of the Effective Time time or the termination of this Agreement in accordance with Article IXboth, Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened would constitute a material breach or repudiation by any party to default on the Debt Commitment Letter of which Parent or its Affiliates becomes aware; provided that none part of Parent or Merger Sub shall be required or, to disclose or provide the Knowledge of Parent, any such information, the disclosure other party thereto under any term of which, in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that which would reasonably be expected to reduce materially impair or adversely affect the aggregate principal amount Debt Financing. As of such alternative financing the date hereof, Parent and Merger Sub have no reason to believe that they or any other party thereto will be funded unable to satisfy on a timely basis any term of the Closing Date or impose additional conditions precedent to the funding Debt Commitment Letter. As 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, without the prior written consent of the CompanyAgreement, 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 has no reason to believe that (A) impose additional any of the conditions precedent or expand upon the conditions precedent other contingencies related to the funding of the Debt Financing, Financing will not be satisfied or (B) reduce the amount of the Debt Financing will not be made available to Parent 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (C) prevent or materially delay or make materially less likely the funding of the Debt Financing (or the satisfaction of the Financing Conditions) Merger Sub on the Closing Date or materially impair, delay or prevent the consummation of the transactions 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 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, 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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))Date. Parent and Merger Sub each expressly agree and acknowledge that Parent’s and agree that their obligations under this Agreement, including their Merger Sub’s obligations to consummate the Offer and the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of any financing.
(iii) There are no conditions precedent or other contingencies (including the consent of any lender under the Existing Credit Agreement which is not party to the Debt Commitment Letter) directly or indirectly related to the funding of the full amount of the Debt Financing other than as expressly set forth in the Debt Commitment Letter. Other than the Debt Commitment Letter, there are no other contracts, arrangements or understandings entered into by Parent or any Affiliate thereof related to the funding or investing, as applicable, of the Debt Financing (except for (i) customary fee letters relating to the commitments in the Debt Commitment Letter, a true, complete and fully executed copy of each of which has been provided to the Company, with only the fee amounts, pricing terms, pricing caps and other commercially sensitive terms redacted or (ii) customary engagement letters or non-disclosure agreements which do not impact the conditionality or amount of the Debt Financing).
(iv) Assuming the Debt Financing is funded on the Closing Date in accordance with the Debt Commitment Letter, the Closing is consummated in accordance with the terms of this Agreement and the transactions in the Rollover and Support Agreements are consummated in accordance with the terms thereof, following satisfaction of the conditions precedent thereto, the aggregate proceeds of the Debt Financing together with no more than $5 million of cash of the Company will be in an amount sufficient to consummate the Merger and the other transactions contemplated by this Agreement, including to (i) pay the aggregate Merger Consideration pursuant to Section 4.01(a) and (ii) pay all related fees and expenses of Parent, Merger Sub and their respective representatives pursuant to this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Convey Health Solutions Holdings, Inc.), Merger Agreement (Convey Health Solutions Holdings, Inc.)
Financing. (a) From Subject to the date terms and conditions of this Agreement until the earlier Agreement, each of the Effective Time or the termination of this Agreement in accordance with Article IX, Parent and its Merger Subsidiary shall use, and shall cause their Affiliates shall use to use, their respective reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisable, advisable to arrange and obtain the Debt Financing as promptly as practicable on the terms and to consummate conditions described in the Debt Financing on or prior Commitment Letters, including using (and causing their Affiliates to the Closing Date. Such actions shall include, but not be limited to, using use) their respective reasonable best efforts to: (i) comply with and maintain in effect the Debt Commitment Letter Financing Commitments, (subject 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 amendment, supplement, replacement, substitution, termination or other modification or waiver that is event not prohibited by clause (dlater than 10 Specified Business Days) below)after the date hereof; (iiiii) 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 obtain a waiver thereofcause 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 Conditions Parties and any other Persons providing Debt Financing to fund the Debt Financing at or prior to the extent within Effective Time.
(b) Parent shall not agree to, or permit, any amendments or modifications to, or any waivers under, the control Financing Commitments without the prior written consent 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 if such amendments, modifications or waivers would reduce the date hereof; and (iv) in the event that the Offer Conditions have been satisfied or waived or, upon funding would be satisfied, consummate aggregate amount of the Debt Financing (including by instructing 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 Sources at or prior to fund the Debt 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 in accordance with Commitments; provided that, for the avoidance of doubt, each of Parent and Merger Subsidiary may amend the Debt Commitment LetterLetters to add lenders, and enforcing Parent’s rights under lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letter and the definitive agreements relating to the Debt Financing).
(b) From as of the date of this Agreement until the earlier hereof; provided further that, without derogating from any of the Effective Time or Company’s other obligations under Section 6.08, the termination Company shall have no obligation to comply with Section 6.08 of this Agreement in accordance connection with Article IX, Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligationamendments.
(c) In the event all or that Parent determines that any portion of the Debt Financing becomes unavailable on will not be available in the terms and conditions manner or from the sources contemplated by in 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 Section 8.1 and Annex 1)Financing Commitments, then Parent and its Affiliates shall (i) Parent shall promptly so notify the Company thereof and the reasons therefor, (ii) Parent and Merger Subsidiary shall use their respective reasonable best efforts to obtain 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 same or alternative Debt Financing Entities on terms and conditions, taken as a whole, no transactions contemplated by this Agreement that includes conditions to funding not materially less favorable to Parent than those in the Financing Conditions, not involving any conditions that would 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required AmountCommitments, as promptly as practicable following the occurrence of such eventevent (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 of any breach or threatened (in writing) breach by any party of any of the Financing Commitments or the Financing Commitment of which Parent or Merger Subsidiary becomes aware or any termination or threatened (in writing) termination thereof, (iii) use reasonable best efforts to obtainafter the receipt of any written notice or other written communication received from any Debt Financing Party, and when obtained, provide give the Company with a true and complete copy of, a new financing commitment that provides for such alternative financing; provided that prompt written notice of 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 material dispute or disagreement between or among any dates related thereto) may be redacted, so long as such redaction does not extend parties to any terms Financing Commitment that would reasonably be expected to reduce result in a breach under the aggregate principal amount of such alternative financing Financing Commitment, (iv) give the Company prompt written notice if for any reason Parent or Merger Subsidiary has determined in good faith that it will not be able 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, 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 obtain all 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 portion of the Debt Financing or on substantially the net cash proceeds available from terms and conditions contemplated by the Debt Financing Commitments, (v) promptly furnish any additional information reasonably requested in writing by the Company relating to an amount that is less than the Required Amount circumstances in clauses (after taking into account any cash on hand, available lines i) through (iv) of credit (including under Borrower’s existing revolving credit and securitization facilitiesthis Section 7.04(e)) and other sources (vi) keep the Company reasonably informed of immediately available funds), (C) prevent or materially delay or make materially less likely the funding status of its efforts to arrange the Debt Financing (or the satisfaction of the Financing Conditions) on the Closing Date or materially impair, delay or prevent the consummation of the transactions 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 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 (Ealternative financing), 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 2 contracts
Sources: Merger Agreement (NICE Ltd.), Merger Agreement (inContact, Inc.)
Financing. (a) From As of the date of this Agreement until Agreement, Parent has delivered to the earlier Company a true and complete copy of (i) an executed equity commitment agreement, dated as of the Effective Time or date hereof (the termination of this Agreement in accordance with Article IX“Equity Commitment Agreement”), Parent among Parent, Sub and its Affiliates shall use reasonable best efforts Guarantor, pursuant to takewhich Guarantor has agreed, or cause according to be taken, all actions, the terms and use reasonable best efforts subject to do, or cause to be done, all things reasonably necessary or advisablethe conditions therein, to arrange and obtain fund an amount sufficient to satisfy the Debt Financing and to consummate the Debt Financing on or Uses no later than immediately prior to the Closing Date. Such actions shall include(the “Equity Financing”), 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 Limited Guarantee and its Affiliates; (iii) negotiate, execute and deliver the Debt Financing Documents Commitment Letters (the Equity Commitment Agreement and the Debt Financing Commitment Letters, collectively, the “Financing Letters”) (and corresponding fee letters relating to the extent required 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 therein, the Debt Financing (such Debt Financing, together with the Equity Financing, collectively referred to as the “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 will have sufficient available funds to pay the Required Amount 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 Subsidiaries in connection with, or as a result of, the Transactions, and payment of all fees and expenses related to the foregoing (after taking into account collectively, the “Financing Uses”).
(c) The Financing Letters and Limited Guarantee have not been terminated or otherwise amended, supplemented or modified in any cash on handrespect as of the date of this Agreement. The Equity Commitment Agreement and the Limited Guarantee are legal, available lines valid and binding obligations of credit each of the parties thereto (including under Borrower’s existing revolving credit and securitization facilities) and other sources of immediately available fundsthan the Company), which shall reflect enforceable against such parties in accordance with their terms, subject to the terms 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 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 Debt Commitment Letter (including any “market flex” provisions (if any) related thereto) or on such other terms acceptable Financing Letters and delivered to Parent the Company prior to the date hereof, in each case, that would not affect the availabiltiy of the Debt Financing or make the Debt Financing materially less likely to occur. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, could constitute an Adverse Effect 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 as compared Letters or otherwise result in any portion of the Financings contemplated thereby to be 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 Letter delivered to Letters (the Company on the date hereof; and (iv“Financing Conditions”) 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 respect to the Debt Financing).
(b) From . No event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default on the date part of this Agreement until Parent or, to the earlier knowledge of Parent, any other party thereto under the Effective Time Financing Letters or the termination Limited Guarantee or would result in the failure of this Agreement in accordance with Article IX, a Financing Condition. Each of Parent and its Affiliates shall give the Company prompt notice of Sub has no reason to believe that it or any material breach, repudiation or threatened material breach or repudiation by any other party to the Debt Commitment Letter of which Parent Financing Letters will be unable to satisfy on a timely basis any term thereof. There are no conditions precedent or its Affiliates becomes aware; provided that none of Parent or Merger Sub shall be required other contingencies related to disclose or provide any such information, the disclosure of which, in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or any portion funding of the Debt Financing becomes unavailable on full amount of the terms and conditions contemplated by the Debt Commitment Letter (including the flex provisions (if any)) (Financings 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 Adverse Effect on Financing (as defined below) as compared to those expressly set forth in the Debt Commitment Letter delivered to the Company on the date hereof, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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 DateLetters.
(d) From 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 provide services, including debt or equity financing, to any third person in connection with a transaction relating to the date of this Agreement until the earlier of the Effective Time Company or the termination of this Agreement in accordance with Article IX, 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 Company Subsidiaries (including under Borrower’s existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 with the economic and other arrangements with respect to such appointments, (2) modify pricing, (3) terminate or reduce making of 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 applicableCompeting Proposal) in connection with any Alternative Financing to the extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 financingTransactions.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (West Marine Inc)
Financing. (a) From the date of this Agreement until Until the earlier of the Effective Time or Closing and the valid termination of this Agreement in accordance with Article IXIX (or, Parent if earlier, the date that the requisite holders of indebtedness issued pursuant to the Gold Credit Agreement shall have consented to or otherwise amended, amended and its Affiliates restated, refinanced or replaced the Gold Credit Agreement to permit the transactions contemplated by the Transaction Documents, the SpinCo Financing and the Permanent SpinCo Financing (such date, the “Gold Credit Agreement Consent Date”)), Gold shall use reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisable, advisable to arrange and obtain the Debt Financing and to consummate the Debt Financing on or prior to the Closing 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, pursuant to which, among other things, the applicable Lenders have committed to provide Gold with debt financing in the applicable amount set forth therein (the debt financing contemplated by the Commitment Letter (subject to any amendmentbe issued or incurred by Gold being referred to as the “Gold Financing”), supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below); (ii) satisfy, or obtain a waiver thereof, comply on a timely basis all Financing Conditions to with the extent obligations and satisfy on a timely basis the conditions within the control of Parent and its Affiliates; (iii) negotiateGold, execute and deliver Debt Financing Documents to the extent required to pay the Required Amount (after taking into account any cash on handin each case, 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 are set forth in the Debt Commitment Letter delivered that are applicable to Gold, (iii) enforce the Company on rights of Gold under the date hereof; Commitment Letter and (iv) in obtain funding of the event that the Offer Conditions have been satisfied Gold Financing no later than contemporaneously with 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 immediately prior to the Debt Financing)Merger.
(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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all any funds in the amounts set forth in the Commitment Letter or the Gold Financing Agreements (as defined below), or any portion of the Debt Financing becomes thereof, become unavailable on the terms and conditions contemplated by in the Debt Commitment Letter (including or the flex provisions (if any)) Gold Financing Agreements (other than as a result of the Company’s breach of any provision of this Gold Credit Agreement or failure to satisfy the conditions set forth in Section 8.1 and Annex 1Consent Date), then Parent each of Mercury and Gold (in consultation in good faith with Mercury) shall, and shall cause their respective Subsidiaries (in the case of Mercury, limited to SpinCo and its Affiliates shall (iSubsidiaries) promptly notify the Company thereof and the reasons thereforto, (ii) use reasonable best efforts to cooperate to obtain alternative promptly replacement debt financing for Gold from the same or alternative Debt Financing Entities on terms and conditionssources, taken as a whole, no less favorable to Parent than the Financing Conditions, not involving any conditions that would constitute in 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, thataggregate amount, when taken together with added to the portion of the Debt Gold Financing that remains is available and any cash on hand, other available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) and other sources of immediately available fundsliquidity, is at least equal to $500,000,000 (the Required Amount“Gold Alternative Financing”, it being understood and agreed that references herein to (i) the Gold Financing shall include any such Gold Alternative Financing and (ii) the Commitment Letter or Gold Financing Agreements shall include the commitment letter and definitive agreements, as promptly as practicable following the occurrence of applicable, in each case relating to such eventGold Alternative Financing), and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, obtain a new financing commitment that provides for such alternative financing; provided provided, that any provisions set forth in such new financing commitment relating to fees, pricing terms, “market flex” provisions (if any) and other the terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 Gold Alternative Financing Document if such amendment, modification, supplement, restatement, assignment, substitution or replacement would must (A) impose additional conditions precedent or expand upon the conditions precedent not result in any material and adverse Tax consequences to Mercury and its Subsidiaries, including as 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 Intended Tax Treatment of the transactions contemplated by the Transaction Documents (as determined by Mercury in good faith); provided, further, that any violation of the Intended Tax Treatment shall be deemed material and adverse for purposes of this Agreement, including the Offer and the MergerSection 7.6(b), (DB) unless otherwise agreed to in writing by ▇▇▇▇▇▇▇, be on terms and conditions not materially adversely affect Parent’s ability less favorable, taken as a whole, to consummate Gold than those in the transactions contemplated Commitment Letter or the Gold Financing Agreements, as applicable and (C) unless otherwise agreed to in writing by this AgreementMercury, including the Offer and the Merger or (E) materially adversely impact the ability of Parent or not contain any of its Affiliates’ to enforce their respective rights against the Debt Financing Sources or any of the other parties conditions to the Debt consummation of such Gold Alternative Financing that are more onerous than the conditions set forth in the Commitment Letters Letter or the definitive agreements with respect thereto Gold Financing Agreements, as applicable (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 Financingsubject, 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 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 anyIntended Tax Treatment)) 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 2 contracts
Sources: Merger Agreement (Modine Manufacturing Co), Merger Agreement (Modine Manufacturing Co)
Financing. (a) From As of the date of this Agreement until Agreement, P▇▇▇▇▇ has delivered to the earlier Company a true and complete copy of the Effective Time executed Debt Commitment Letter and 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 reduce the aggregate principal amount of the Debt Financing to be funded on the Closing Date or impose additional conditions precedent to the termination 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 date of this Agreement in accordance with Article IXAgreement. As of the date of this Agreement, neither Parent and nor any of its Affiliates shall use reasonable best efforts has entered into any agreement, side letter or other commitment or arrangement relating to takethe 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 cause to be takenwould otherwise affect the availability of the Debt Financing on the Closing Date, all actionsin each case, other than the Debt Commitment Letter and use reasonable best efforts to do, the Debt Fee Letters or cause to be done, all things reasonably necessary any customary engagement letters or advisable, to arrange and obtain 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 (that may include customary redactions) have been delivered to consummate the Parent as of the date hereof. Assuming satisfaction of the Offer Conditions and that the Debt Financing is funded on or prior to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: (i) comply Date in accordance with and maintain in effect the Debt Commitment Letter Letter, as of the date of this Agreement, the aggregate proceeds of the Debt Financing (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 both before and after giving effect to the extent within the control exercise of Parent and its Affiliates; any or all “market flex” provisions (iiiif any) negotiaterelated thereto), execute and deliver Debt Financing Documents to the extent required to pay the Required Amount (after taking into account together with 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)funds of Parent, which shall reflect will be sufficient to finance (i) the terms contained in payment of 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 aggregate Per Share Price, the Company on the date hereof; PSU Consideration and (iv) in the event that the Offer Conditions have been satisfied or waived orCompany RSA Consideration to which holders of Company Common Stock, upon funding would Company PSUs and Single-Trigger RSAs will 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 entitled at the Effective Time or the termination of pursuant to this Agreement and (ii) the payment of all fees and expenses, in accordance with Article IXthe case of each of clauses (i) and (ii), Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or its Affiliates becomes aware; provided that none of extent required to be paid by Parent or Merger Sub shall be required to disclose or provide any such information, the disclosure of which, in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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 connection with Article IX, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions contemplated by this Agreement, including the Offer and Offer, the Merger, (D) materially adversely affect Parent’s ability to consummate repaying all principal, interest and fees outstanding under the transactions contemplated by this Agreement, including the Offer Company Credit Agreement and the Merger or Redemption and/or Discharge (E) materially adversely impact the ability of Parent or any of its Affiliates’ minimum amount sufficient to enforce their respective rights against finance such payments, the Debt Financing Sources or any “Required Amount”). As 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, 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 have not been withdrawn or rescinded in any respect. As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and represent valid, binding and enforceable obligations (subject 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 paid) any and all fees that are due and payable on or prior to the date of this Agreement in connection with the Debt Financing. Assuming performance by the Company and its Affiliates of their respective obligations under this Agreement, as in effect of the date 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 or, to the Knowledge of Parent, any other party thereto under any term of the Debt Commitment Letter. As of the date hereof 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 (including i) any of the market flex provisions Financing Conditions will not be satisfied or (if any))ii) the Debt Financing will not be made available to Parent on the Closing Date. Parent and Merger Sub expressly agree and acknowledge and agree that their obligations under this Agreementhereunder, including their P▇▇▇▇▇’s and Merger Sub’s obligations to consummate the Offer and the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt consummation of financingany financing arrangements, Parent’s or Merger Sub’s obtaining of any financing or the availability, grant, provision or extension of 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) 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 use reasonable best efforts to take, take (or cause to be taken) all actions necessary, all actions, and use reasonable best efforts to do, proper or cause to be done, all things reasonably necessary or advisable, advisable to arrange and obtain the Debt Financing and to consummate the Debt Financing on or prior a timely basis on the terms and subject to the Closing Dateconditions 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. Such actions Parent shall include, but not be limited to, using use its reasonable best efforts to: to (i) comply with and maintain in effect the Debt Commitment Letter (subject to any amendmentand comply with its obligations and conditions thereunder, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below); (ii) satisfy, or obtain a waiver thereof, negotiate and enter into definitive agreements on a timely basis all Financing Conditions with respect 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 terms and conditions (including under Borrower’s existing revolving credit and securitization facilities“flex” provisions) and other sources of immediately available funds), which shall reflect contained in the terms Debt Commitment Letter or otherwise no less favorable to Parent than those contained in the Debt Commitment Letter (including any the “market flex” provisions Financing Agreements”), (if anyiii) related theretosatisfy (or have waived) or on such other terms acceptable a timely basis all conditions and covenants applicable to Parent in the Debt Commitment Letter that would not constitute an Adverse Effect on 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 as compared Agreements), (iv) enforce all its respective rights under the Debt Commitment Letter and (v) except to those 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 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 satisfiedwaiver thereof), consummate the Debt Financing (including at or prior to the Closing. Parent shall not permit any amendment, supplement or modification to be made to, or any waiver by instructing the Debt Financing Sources to fund the Debt Financing in accordance with the Debt Commitment Letter, and enforcing Parent’s rights Parent of any provision or remedy under the Debt Commitment Letter and or any Financing Agreement if such amendment, supplement, modification or waiver expands on the definitive agreements relating conditions precedent or contingencies to the Debt Financing).
(b) From funding on 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or any portion “Closing Date” 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 Adverse Effect on Financing (as defined below) as compared to those set forth in the Debt Commitment Letter delivered to the Company as in effect on the date hereofof this Agreement, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with in a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms manner that would reasonably be expected to reduce the aggregate 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 IXprevent, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (C) prevent impair 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 transactions 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 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 Companymay replace, amend, modify, supplement, restate, assign, substitute supplement or replace modify the Debt Commitment Letter, including (1) Letter to add and appoint additional agents, co-agents, lenders, arrangers, joint bookrunners, underwriters, agents, lenders and similar Debt Financing Entities managers or other entities that have not executed the Debt Financing Documents Commitment Letter as in effect on of 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 the provisions therein. Parent shall promptly deliver to the Company true and the previous paragraph is the “Alternative Financing.” complete copies of any such replacement, amendment, supplement, modification or waiver. For purposes of this AgreementSection 6.09, references to “Debt Financing” shall include the debt financing contemplated by any Alternative Financing the Debt Commitment Letter as permitted to be amended or modified by this Section 6.09 and references to “Debt Commitment Letter”, “Debt Fee Letters”, “Debt Financing Documents”, “Debt Financing Entities”, “Debt Financing Sources”, or “Financing” shall include the such documents (as permitted to be amended, modified or commitments or financing sources, as applicable) in connection with any Alternative Financing to the extent permitted substituted by this Section 7.186.09.
(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 such Alternative conditions contemplated in the Debt Commitment Letter (including the “flex” provisions set forth in the Fee Letters) or the Financing Agreements, Parent shall be required (a) give prompt notice to comply 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 provisions of Merger and the other transactions contemplated by this Agreement to as promptly as practicable after the same extent as the Debt Financingoccurrence 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 Affiliates be required to rights under the Debt Commitment Letter or (ii) pay any fees or any interest rates applicable to the Alternative Financing 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 of any material breach or default by any party to any of the Debt Commitment Letter or Financing Agreements of which Parent 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 cause the Company’s independent auditors to provide, consistent with customary practice, (A) consent to offering memoranda that include or incorporate the Company’s consolidated financial information and their reports thereon, in each case, to the extent 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, (v) provide and execute documents as may be reasonably requested by Parent and necessary for the consummation of the 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 suitable to be 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 payoff, discharge and termination on the date hereof 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 (including subject to receipt from Parent of the market flex provisions 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 (if any)x) or agree to any term (including any market flex term (if any)) less favorable (taken as a whole) to Parent than such term contained satisfy the conditions precedent set forth in the Debt Commitment Letter as 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 effect on connection with the date hereof syndication or marketing of the Debt Financing, provided that such logos are not used in a manner that would reasonably be expected to harm, disparage or adversely affect the Company, its Subsidiaries, their marks or their reputation.
(including f) Notwithstanding anything to the market flex provisions (if any)). Parent and Merger Sub expressly acknowledge and agree that their obligations under contrary contained in this Agreement, including (i) nothing in this Agreement shall require any cooperation by the Company, the Company Subsidiaries or any of their obligations respective Representatives to consummate the Offer and extent that (A) it would require the MergerCompany to pay any commitment or other fees, reimburse any expenses or otherwise incur any liabilities that are not subject toreimbursed by Parent as provided in 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 ongoing business or conditioned onoperations of the Company and/or any Company Subsidiary, Parent’s or Merger Sub’s receipt of financing.(C) it would require the Comp
Appears in 2 contracts
Sources: Merger Agreement (CEB Inc.), Merger Agreement (Gartner Inc)
Financing. (a) From No later than the date second (2nd) Business Day after satisfaction or waiver of this Agreement 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 Effective Time Closing or the termination of this Agreement in accordance with pursuant to Article IXVIII, Parent the Buyer and its Affiliates shall use reasonable best efforts the Transitory Subsidiary will have sufficient funds to take, or cause to be taken, perform 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 of their respective obligations under this Agreement and to consummate the Debt Financing on or prior Merger.
(b) The Buyer has delivered to the Closing DateCompany 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”). Such actions shall include, but not be limited to, using reasonable best efforts to: (i) comply with and maintain in effect Pursuant to the Debt Commitment Letter (and subject to any amendmentthe terms and conditions contained therein (including the exhibits thereto), supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause the Arrangers have committed to provide $125,000,000 in aggregate principal amount of debt financing for the purposes set forth therein (dthe “Financing”) below); (ii) satisfy, or obtain a waiver thereof, on a timely basis all Financing Conditions to the extent within Buyer at the control Effective Time (the “Debt Commitment”). The obligations to fund the full amount of Parent and its Affiliates; (iii) negotiate, execute and deliver Debt the 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 are not subject to any “market flex” provisions (if any) related thereto) or on such condition precedents other terms acceptable to Parent that would not constitute an Adverse Effect on Financing as compared to than those expressly set forth in the Debt Commitment Letter delivered to the Company on Letter. As of the date hereof; and , (ivi) in 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 event that part of the Offer Conditions have been satisfied or waived Buyer under the Debt Commitment Letter or, upon funding would be satisfiedto the knowledge of the Buyer, consummate the Debt Financing (including by instructing the Debt Financing Sources any other party 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).
(bii) 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 compliance with its obligations under this Agreement, the Buyer does not have any reason to believe that any of any provision of this Agreement or failure to satisfy the conditions set forth in Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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, will not involving be satisfied or that the Financing or any conditions that would constitute an Adverse Effect on Financing (as defined below) as compared other funds necessary to those set forth pay the Aggregate Merger Consideration and to make all other necessary payments by the Buyer in the Debt Commitment Letter delivered to the Company on the date hereof, that, when taken together connection with the portion Merger, including the payment of the Debt Financing that remains available all fees and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would expenses reasonably be expected to reduce be incurred by the aggregate 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 Buyer in accordance connection with Article IX, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 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 the Debt Commitment Letter, the net funds contemplated to be received pursuant to the Debt Commitment Letter, together with other financial resources of the Buyer, including cash on hand on the Offer 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 Merger, (D) materially adversely affect Parent’s ability including the payment of all fees and expenses reasonably expected to consummate be incurred by the Buyer, in connection the transactions contemplated by this Agreement, including the 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, 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 2 contracts
Sources: Merger Agreement (Biosphere Medical Inc), Merger Agreement (Merit Medical Systems Inc)
Financing. (a) From the date Each 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 Merger Sub shall use their reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisable, advisable to arrange and obtain the Debt Financing and to consummate proceeds of the Debt Financing on or prior to the Closing Date. Such actions shall includeFinancing, but not be limited to, including using reasonable best efforts to: to (i) comply with and maintain in effect respect to 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); 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, or obtain a waiver thereof, satisfy on a timely basis all Financing Conditions to the extent conditions within the control of Parent or Merger Sub, and its Affiliates; (iii) negotiateotherwise comply with all terms, 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 applicable 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or its Affiliates becomes aware; provided that none of Parent or Merger Sub shall be required to disclose or provide any in such information, the disclosure of which, in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) definitive agreements. In the event all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments and such portion is reasonably required to consummate the transactions 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 Section 8.1 and Annex 1)Agreement, then Parent and its Affiliates Merger Sub shall (i) promptly notify the Company thereof and the reasons therefor, (ii) shall use their reasonable best efforts to arrange to obtain any such portion from alternative financing from the same or alternative Debt Financing Entities on sources upon terms and conditions, taken as a whole, conditions no less favorable to Parent than the Financing Conditions, not involving any conditions that would constitute an Adverse Effect on Financing and Merger Sub (as defined below) as compared to those set forth in the Debt Commitment Letter delivered to reasonable judgment of Parent) than those contained in the Company on the date hereof, that, when taken together with the portion of the Debt applicable Financing that remains available and 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, is at least equal to the Required Amount, Commitments as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts . Parent shall deliver to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for copies of all agreements pursuant to which any such alternative financing; provided that source shall have committed to provide Parent and Merger Sub with any provisions set forth in such new financing commitment relating portion of the Financing. Parent shall give the Company prompt notice of any material breach (of which Parent becomes aware) by any party to feesthe Financing Commitments or any termination of the Financing Commitments. Each of Parent and Merger Sub shall refrain from taking, pricing termsdirectly or indirectly, “market flex” provisions (if any) and other terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend to any terms action that would reasonably be expected to reduce the aggregate principal amount result in a failure 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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 conditions contained in the Financing Commitments or in any definitive agreement related to the Debt Commitment Letters 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 with respect thereto (clauses (A) through (E), each an “Adverse Effect on Financing”); provided that Parent may, without relating to the prior written consent of the Company, amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter, including (1) to add Financing 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 may obtain alternative sources of debt financing in lieu substitution 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 they consult with the Company and promptly provide the Company with such amendments would information it may reasonably request regarding any alternative financing arrangements or plans. For the avoidance of doubt, if the Financing (or any alternative) has not been obtained by 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 (including their obligations under this Section 5.11).
(b) The Company shall and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its respective Representatives to, provide to Parent and Merger Sub all reasonable cooperation reasonably requested by Parent in connection with the Financing (or any potential alternative financing) and to assist Parent in causing the conditions to the Financing Commitments to be satisfied, including (i) furnishing Parent and Merger Sub and their Financing sources (as promptly as practicable) the unaudited consolidated balance sheet of the Company 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 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 by Parent and facilitating the pledging of collateral in connection with the Financing, including executing and delivering any customary pledge and security documents (including 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 expected requested by Parent (including a certificate of the chief financial officer of the Company with respect to result solvency matters as of the Closing, on a pro forma basis), (v) causing the 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 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 an Adverse Effect on Financing. Upon request 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 Company’s or its Subsidiaries’ hedging, swap or derivative arrangements on terms satisfactory to Parent, (x) cooperating in procuring, prior to the date that is twenty (20) consecutive Business Days prior to the Closing Date, corporate and facilities ratings for the Debt Financing and (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, 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 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 (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 or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries. If the Closing does not occur, Parent shall keep indemnify and hold harmless the Company informed 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 reasonable detail connection with the arrangement of the status Financing (including actions taken at the request of Parent’s efforts to arrange the Debt Financing. Any alternative, substitute or replacement debt financing obtained by Parent in accordance with this paragraph Section 5.11(b)) and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries or other information furnished by or on behalf of the Company 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 all documented and reasonable out-of-pocket costs incurred by the Company or its Subsidiaries in connection with this Section 5.11(b).
(c) 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 previous paragraph is Company shall comply with its covenants in Sections 5.11(a) and 5.11(b) with respect to 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 Commitment (or commitments any related definitive agreements) or financing sourcesthe Equity Financing Commitment, as applicable) in connection , as so amended, replaced, supplemented or otherwise modified and with any Alternative Financing respect to the extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement other debt or equity financing to the same extent as that Parent and the Debt Financing. Notwithstanding anything Company would have been obligated to comply with respect 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 financingFinancing.
Appears in 2 contracts
Sources: Merger Agreement (Railamerica Inc /De), Merger Agreement (Genesee & Wyoming Inc)
Financing. (a) From Immediately following the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXhereof, TopCo Parent and its Affiliates shall use its commercially reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, advisable or advisableproper to obtain the Pre-Emptive Rights Waiver as soon as practicable following the date hereof (and in any event within thirty (30) Business Days of the date hereof).
(b) TopCo Parent, Parent and Merger Sub 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, advisable or proper to arrange and obtain the Debt Financing and to consummate contemplated by the Debt Financing Letters on or prior to the Closing Date. Such actions shall includeDate on the terms and conditions described in the Financing Letters, but not be limited to, using reasonable best efforts including to: (i) comply with and maintain in effect and comply with the Debt Commitment Letter (subject Financing Letters and any Definitive Financing Agreements in accordance with their terms until the funding of the Financing to any amendment, supplement, replacement, substitution, termination TopCo Parent or other modification one or waiver more of its Affiliates that is not prohibited by clause (d) below)are within its control on the Closing Date; (ii) satisfy, or obtain a waiver thereof, satisfy on a timely basis all Financing Conditions conditions to the extent 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 the control of Parent and its Affiliatescontrol; (iii) negotiate, execute negotiate and deliver Debt Financing Documents enter into additional definitive debt financing agreements to the extent required to pay the Required Amount (after taking into account any cash on hand, available lines of credit necessary (including under Borrower’s the entrance into amended and/or restated versions of already existing revolving credit and securitization facilitiesdefinitive debt facility agreements) 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter Letters (including the flex provisions “Definitive Debt Financing Agreements”) and definitive equity financing agreements on the terms and conditions contemplated by the Equity Letters (if anythe “Definitive Equity Financing Agreements” and together with the Definitive Debt Financing Agreements, the “Definitive Financing Agreements”); and (iv) (other than as a result subject to the satisfaction or waiver of the Company’s breach 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 any provision the status of this Agreement or failure its efforts to arrange the Financing and to satisfy the conditions set forth in Section 8.1 and Annex 1), then thereof. TopCo Parent and its Affiliates shall (i) will promptly notify the Company thereof and the reasons therefor, (ii) 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 Adverse Effect on Financing (as defined below) as compared to those set forth in the Debt Commitment Letter delivered provide to the Company on copies of all Definitive Financing Agreements. TopCo Parent shall give the date hereofCompany prompt written notice after the occurrence of any of the following: (A) any material breach or material default by any party to the Financing Letters or definitive agreements related to the Financing of which TopCo Parent becomes aware; (B) the receipt by TopCo Parent, thatParent or Merger Sub of any written notice or written communication from any Financing Source with respect to any actual or potential breach, when taken together default, termination or repudiation by any party to a 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 reason, TopCo Parent, Parent or Merger Sub at any time believes it will not be able to obtain all or any portion of the Debt Financing that remains available in an amount sufficient to consummate the Offer, the Merger and any cash on hand, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) and the other sources of immediately available funds, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, Contemplated Transactions; and (iiiE) use reasonable best efforts to obtainany fact, and when obtainedchange, provide the Company with a true and complete copy of, a new financing commitment event or circumstance that provides for such 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 redacted, so long as such redaction does not extend to any terms that would could reasonably be expected to reduce prevent or materially delay or impede the aggregate principal amount consummation of such alternative financing 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 be funded on the Debt Financing, the availability of the Equity Financing) have been satisfied and Parent is required to consummate the Closing Date or impose additional conditions precedent pursuant to Section 2.04, TopCo Parent shall use its commercially reasonable efforts to cause each Financing Source to fund its respective portion of the funding of such alternative financing Financing required to consummate the transactions contemplated by this Agreement and to pay related fees and expenses on the Closing Date.
(dc) From Prior to the date Closing, TopCo Parent, Parent and Merger Sub shall not, and Parent shall not permit Merger Sub to, agree to or permit any termination, amendment, replacement, supplement or other modification of, or waive any of this Agreement until its rights, provisions or remedies under, the earlier of Financing Letters or Definitive Financing Agreements without the Effective Time or the termination of this Agreement in accordance with Article IXCompany’s prior written consent which consent shall not be unreasonably withheld; provided, that TopCo Parent, Parent and Merger Sub may, without the Company’s prior written consent of the Companyconsent, Parent and its Affiliates shall not amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter or (i) enter into any Debt Financing Document if such amendment, modificationreplacement, supplement, restatement, assignment, substitution supplement or replacement would (A) impose additional conditions precedent other modification to or expand upon the conditions precedent to the funding waiver of any provision of the Debt FinancingLetters or Definitive Debt Financing Agreements that would not, (B) 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 Subsidiaries, required to pay the Merger Amounts, or prevent, materially delay or impede the net cash proceeds available from 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 an amount add lenders, lead arrangers, book runners, syndication agents or similar entities that is less than had not executed the Required Amount Debt Letters as of the date hereof so long as any such addition would not reasonably be 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 foregoing clauses (after taking into account any cash on hand, available lines of credit (including under Borrower’s existing revolving credit and securitization facilitiesi) and other sources of immediately available funds(ii), to the extent doing so would not (Cx) impose new or additional conditions or expand, amend or modify any existing condition to the receipt and availability of the Debt Financing in a manner that would reasonably be expected to prevent or materially delay or make materially less likely impede the funding ability 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 transactions contemplated by this Agreement, including the Offer and the Merger, (D) materially adversely affect Parent’s ability Parent to consummate the transactions contemplated by this Agreement, including the Offer and the Merger Closing or (Ey) materially adversely impact the ability of TopCo Parent, Parent or any of its Affiliates’ Merger Sub, as applicable, to enforce their respective its 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, 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 Letters. Upon any such amendment, replacement, supplement or modification, the term “Debt Letters” and “Definitive Debt Financing in order Agreements” shall mean the Debt Letters or Definitive Debt Financing Agreements, as applicable, as so amended, replaced, supplemented or modified. TopCo Parent shall promptly deliver to obtain alternative sources the Company copies of debt financing in lieu of all any such amendment, replacement, supplement or a portion other modification 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 Letters 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”, “Definitive 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 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 financingAgreements.
Appears in 2 contracts
Sources: Merger Agreement (Ig Design Group Americas, Inc.), Merger Agreement (CSS Industries Inc)
Financing. (a) From During the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXPre-Closing Period, Parent and its Affiliates shall use its reasonable best efforts to takearrange the Debt Financing and obtain the financing contemplated thereby in an amount sufficient to fund the Financing Amounts on the terms and conditions set forth in the Debt Commitment Letter, or cause to be taken, all actions, and use including using its 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 Debt Financing on or prior to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: (i) comply with and maintain in effect taking into account the Debt Commitment Letter (subject to any amendmentMarketing Period, 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 definitive agreements with respect to the 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 contemplated by the Debt Commitment Letter (including any “market flex” provisions (if any) related thereto) on the terms and conditions contemplated by the Debt Commitment Letter or on such other terms acceptable to Parent that and the applicable Debt Financing Sources so long as such other terms would not constitute an Adverse Effect (x) materially delay or prevent the Closing, (y) adversely impact in any material manner the likelihood of the funding of the Debt Financing or the satisfaction of the conditions to obtaining any of the Debt Financing or (z) adversely impact in any material manner the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter or the definitive debt financing documents, (ii) satisfy on Financing as compared a timely basis (or obtain waivers of) all conditions to those set forth funding that are applicable to Parent in the Debt Commitment Letter delivered and the definitive agreements with respect 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 contemplated by the Debt Commitment Letter (including by instructing and not take any action that would reasonably be expected to prevent, impede or delay the consummation of the Debt Financing Sources to fund the Debt Financing in accordance with contemplated by the Debt Commitment LetterLetter beyond the Outside Date), and enforcing Parent’s (iii) enforce its rights under the Debt Commitment Letter and the definitive agreements relating with respect to the Debt Financing)Financing in a timely and diligent manner and (iv) consummate the Debt Financing at or prior to the Closing.
(b) From Notwithstanding anything herein to the contrary, Parent shall have the right to (x) reduce (or terminate) the commitments under the Debt Commitment Letter by the amount of cash proceeds from consummated offerings or other incurrences of debt (including notes) of Parent, Merger Sub I and/or Merger Sub II consummated after the date of this Agreement until which proceeds are not subject to any conditions or contingencies to financing (including conditions to any escrow agreement) that are not contained in, or are more expansive or less favorable to Parent or the Company than those contained in, the Debt Commitment Letter and (y) substitute such proceeds for the amount by which the commitments under the Debt Commitment Letter are reduced (or terminated); provided that:
(i) an amount in cash or cash equivalents equal to such substituted proceeds is retained by Parent, Merger Sub I and/or Merger Sub II and there are no conditions or restrictions on Parent’s ability to use such amount to fund the Transactions (including any restriction as to which a Subsidiary of Parent is subject, to the extent such restriction prohibits such Subsidiary from transferring, directly or indirectly, such amount to Parent);
(ii) such substituted proceeds, together with any cash funds available to Parent and the remaining Debt Financing shall in no event be less than the Financing Amounts; and
(iii) to the extent any of such proceeds are from consummated offerings or other incurrences of debt (including notes) that have scheduled redemptions or mandatory redemptions or put rights (other than customary asset sale, change of control redemption or put rights), such scheduled redemption is not scheduled to occur prior to, and such right is not exercisable prior to, a date that is earlier than the Outside Date.
(c) Further, Parent shall have the right to substitute commitments in respect of other financing for all or any portion of the Effective Time or Debt Financing from the termination same and/or alternative bona fide third party financing sources (which will be in an amount sufficient to fund, when taken together with the other resources of this Agreement in accordance with Article IX, Parent and its Affiliates shall give other financing arrangements, the Company prompt notice Financing Amounts), so long as (1) any conditions precedent and contingencies to the funding of such financing are in the aggregate, in respect of certainty of funding, equivalent to (or more favorable to Parent than) the conditions precedent and contingencies set forth in the Debt Commitment Letter, (2) such substitute commitments are in an amount, together with cash funds available to Parent and any other Debt Financing, no less than the Financing Amounts and (3) such substitution does not (x) materially delay or prevent the Closing, (y) adversely impact in any material breachmanner the likelihood of the funding of the Debt Financing or (z) adversely impact in any material manner the ability of Parent, repudiation Merger Sub I or threatened material breach or repudiation by any party Merger Sub II to enforce its rights against the other parties to the Debt Commitment Letter or the definitive debt documentation (in each case, in accordance with their terms) or the ability of which Parent or its Affiliates becomes aware; provided that none of Parent Parent, Merger Sub I or Merger Sub shall be required II to disclose consummate the transactions contemplated hereby prior to the Closing Date (“Alternative Financing”). If the Debt Commitment Letter (or provide any such information, the disclosure of which, in the judgement of Parent upon advice of outside counsel, definitive debt documentation) expires or is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all terminated 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)any “flex” provisions) (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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 Adverse Effect on Financing (as defined below) as compared to those set forth contemplated in the Debt Commitment Letter delivered to the Company on the date hereofLetter, thatParent, when taken together with the portion of the Debt Financing that remains available Merger Sub I and 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, is at least equal to the Required AmountMerger Sub II shall use their reasonable best efforts to, as promptly as practicable following the occurrence of such eventevent but no later than the fifth Business Day immediately preceding the Outside Date, arrange for and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new obtain debt financing commitment that provides for such from 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 redacted, sources so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 constitute 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 Alternative 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 The new debt financing obtained by Parent in accordance with this paragraph commitment letter 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) fee letter entered into in connection with any Alternative Financing to are referred to, respectively, as a “New Debt Commitment Letter” and a “New Fee Letter.” In the extent permitted by this Section 7.18event Parent, and Merger Sub I or Merger Sub II enter into any such Alternative Financing shall be required to comply New Debt Commitment Letter (or any amendment, restatement, supplement or modification of the Debt Commitment Letter in accordance with the provisions terms of Section 5.17(b)), (x) Parent, Merger Sub I and Merger Sub II shall promptly provide the Company with true, correct and complete copies thereof (with customary redactions), (y) any reference in this Agreement to the same extent as the “Debt Financing. Notwithstanding anything to ” shall mean 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 debt financing contemplated by the Debt Commitment Letter as so amended, restated, supplemented or modified or by such New Debt Commitment Letter, as applicable, and (z) any reference in effect on this Agreement to the date hereof “Debt Commitment Letter” (including and any definition incorporating the market flex provisions (if any)term “Debt Commitment Letter,”) or agree shall be deemed to any term (including any market flex term (if any)) less favorable (taken as a whole) to Parent than such term contained in include the Debt Commitment Letter and any Fee Letter as so modified to the extent not superseded by a New Debt Commitment Letter or New Fee Letter, as the case may be, at the time in effect on question and any New Debt Commitment Letter or New Fee Letter to 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 financingextent then in effect.
Appears in 2 contracts
Sources: Merger Agreement (Brinks Co), Merger Agreement (NCR Atleos Corp)
Financing. (a) From Prior to the date of this Agreement until Closing, the earlier of Company shall, and shall cause the Effective Time or the termination of this Agreement in accordance with Article IXCompany Subsidiaries to, Parent and its Affiliates shall use reasonable best efforts to takeprovide to Contributor, or cause to be takenRaptor and their respective Subsidiaries such cooperation reasonably requested by Contributor, all actionsRaptor and their respective Subsidiaries, and use which is customarily provided by similarly situated Persons engaging in similar transactions, in connection with the 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 Contributor, to reflect the consolidation of the assets of the Company with those of the Contributed Entities, including: (a) using reasonable best efforts to docooperate with marketing efforts and assist with the preparation of materials for rating agency presentations and bank books, or cause to be done, all things reasonably necessary or advisable, to arrange and obtain the Debt Financing and to consummate the Debt Financing on or prior to the Closing 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 offering memoranda or other modification marketing documents, customarily reviewed or waiver that is not prohibited reasonably requested by clause (d) below)such rating agencies and banks; (iib) satisfyupon reasonable prior written notice, or obtain participating at reasonable times (and during regular business hours) in a waiver thereofreasonable number of meetings, on a timely basis all Financing Conditions to the extent within the control of Parent presentations and its Affiliates; (iii) negotiate, execute rating agency 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 hereofdue diligence sessions; and (ivc) 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 reasonably assisting with the Debt Commitment Letterpreparation of any credit agreement, reasonable pledge and enforcing Parent’s rights under the Debt Commitment Letter and the security documents, currency or interest hedging arrangements, other definitive agreements relating to the Debt Financing).
financing documents, or other certificates or documents; provided, that (bA) From the date of nothing in this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX, Parent and its Affiliates Section 5.24 shall give require the Company prompt notice of to (I) take any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms action that would reasonably be expected to reduce conflict with or violate any of the aggregate principal amount of such alternative financing to be funded on the Closing Date Company’s Organizational Documents or impose additional conditions precedent any Law or (II) pay any fees, reimburse any expenses or give any indemnities prior to the funding of Closing, (B) nothing in this Section 5.24 shall require such alternative financing on cooperation to the Closing Date.
(d) From extent it would unreasonably interfere with the date of this Agreement until the earlier of the Effective Time ongoing business or the termination of this Agreement in accordance with Article IX, without the prior written consent operations 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (C) prevent or materially delay or make materially less likely the funding no obligation of the Debt Financing Company or any Company Subsidiary under any document or agreement executed by the Company or any Company Subsidiary in connection with this Section 5.24 shall be effective until the Closing and (or D) Contributor shall promptly upon receipt of a reasonably detailed invoice therefor, reimburse the satisfaction Company for any reasonable and documented out-of-pocket expenses and costs incurred in connection with the obligations of the Financing Conditions) on Company and the Closing Date or materially impairCompany Subsidiaries under this Section 5.24; provided, delay or prevent the consummation of the transactions contemplated by further, that, except as expressly set forth in this Agreement, including nothing in this Agreement shall require the Offer and Company or the MergerCompany Subsidiaries to cause the delivery of (x) legal opinions or reliance letters, (Dy) materially adversely affect Parent’s ability to consummate any financial information in a form not customarily prepared by the transactions contemplated by this Agreement, including the 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, 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 Company with respect to such appointments, period or (2z) modify pricing, any financial information with respect to a fiscal period that has not yet ended or has ended less than forty-five (345) terminate or reduce any commitments under days prior to the Debt Financing in order to obtain alternative sources date of debt financing in lieu of all or a portion of the Debt Financing and/or such request (4) increase the aggregate amount of the Debt Financingor, in the case of annual financial statements, ninety (90) days prior to such request). For the avoidance of doubt, 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 Party acknowledges and the previous paragraph is the “Alternative Financing.” For purposes of this Agreement, references to “Debt Financing” shall include the agrees that obtaining any proposed 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 7.18, 5.24 is not a condition to Closing and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 financingdelay Closing.
Appears in 2 contracts
Sources: Contribution Agreement (Blackstone Holdings III L.P.), Contribution Agreement (Altus Midstream Co)
Financing. (a) 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 NASDAQ OMX and ICE shall each use its Affiliates shall use respective reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisable, advisable to arrange consummate and obtain the Debt Financing and to consummate the Debt NASDAQ OMX Financing on or prior to the Closing Date. Such actions shall includeterms and conditions described in the NASDAQ OMX Commitment Letter and the ICE Financing on the terms and conditions described in the ICE Commitment Letter, but not be limited toas applicable, including using reasonable best efforts to: to (i) comply with and maintain in effect the Debt NASDAQ OMX Commitment Letter (subject to any amendmentand the ICE Commitment Letter, supplementas applicable, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below); (ii) satisfynegotiate definitive agreements with respect thereto on the respective terms and conditions contemplated by the NASDAQ OMX Commitment Letter and the ICE Commitment Letter, or obtain as applicable, and execute and deliver to NYSE Euronext a waiver thereofcopy thereof as promptly as practicable after such execution, and (iii) satisfy on a timely basis all Financing Conditions conditions applicable 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 such Party in the Debt NASDAQ OMX Commitment Letter (including any “market flex” provisions (if any) related thereto) or on ICE Commitment Letter, as applicable, that are within 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; Party’s control and (iv) in comply with its obligations thereunder. In the event that all conditions to the Offer Conditions Commitment Letter have been satisfied or waived or, upon funding would will be satisfied, consummate the Debt Financing (including by instructing the Debt Financing Sources to fund the Debt Financing in accordance with the Debt Commitment LetterNASDAQ OMX, ICE 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or its Affiliates becomes aware; provided that none of Parent or Merger Sub shall be use their reasonable best efforts to cause the lenders and the other Persons providing the NASDAQ OMX Financing and the ICE Financing, as applicable, to fund on the Closing Date the NASDAQ OMX Financing and the ICE Financing required to disclose consummate the Merger and the other transactions contemplated by this Agreement. NASDAQ OMX and ICE shall each have the right from time to time to amend, replace, supplement or provide otherwise modify, or waive any such informationof its rights under, the disclosure of which, in NASDAQ OMX Commitment Letter or the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege ICE Commitment Letter and/or substitute other debt or which would be in violation of any confidentiality obligation.
(c) In the event equity financing for all or any portion of the Debt NASDAQ OMX Financing or the ICE 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 either the NASDAQ OMX Financing or the ICE Financing and/or substitution of all or any portion of the NASDAQ OMX Financing or ICE Financing shall not prevent or materially impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. If any portion of the NASDAQ OMX Financing or ICE Financing becomes unavailable on the terms and conditions contemplated by in the Debt NASDAQ OMX Commitment Letter (including or the flex provisions (if any)) (other than ICE Commitment Letter and such portion is reasonably required to fund the Merger Consideration, NASDAQ OMX or ICE, as a result of the Company’s breach of any provision of this Agreement or failure to satisfy the conditions set forth in Section 8.1 and Annex 1)applicable, then Parent and shall use its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) use reasonable best efforts to arrange and 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 financial institutions in 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, thatamount sufficient, when taken together with the portion of the Debt NASDAQ OMX Financing or ICE Financing that remains is available and any cash on handall other funds available to NASDAQ OMX or ICE, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) and other sources of immediately available fundsas applicable, is at least equal to consummate the Required Amounttransactions contemplated by this Agreement upon conditions not materially less favorable, in the aggregate, to NASDAQ OMX or ICE, as applicable, than those in the NASDAQ OMX Commitment Letter or the ICE Commitment Letter as promptly as practicable following the occurrence of such event. NASDAQ OMX or ICE, as applicable, shall give NYSE Euronext prompt oral and written notice (but in any event not later than two (2) Business Days after the occurrence) of any material breach by any party to either the NASDAQ OMX Commitment Letter or the ICE Commitment Letter, as applicable, or of any condition not likely to be satisfied, in each case, of which NASDAQ OMX or ICE becomes aware, or any termination of the NASDAQ OMX Commitment Letter or ICE Commitment Letter. NASDAQ OMX and ICE shall each keep NYSE Euronext informed on a reasonably current basis of the status of its efforts to arrange the NASDAQ OMX Financing and ICE Financing, as applicable.
(b) NYSE Euronext shall provide, and (iii) shall cause its Subsidiaries, and shall use its reasonable best efforts to obtaincause each of its and their respective Representatives to provide, all cooperation reasonably requested by NASDAQ OMX or ICE in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of NYSE Euronext and when obtainedits Subsidiaries), provide including (i) as promptly as practicable, providing to NASDAQ OMX and ICE and the Company lenders and other financial institutions and investors that are or may become parties to the NASDAQ OMX Financing or ICE Financing and to any underwriters, initial purchasers or placement agents in connection with a true the NASDAQ OMX Financing or ICE Financing (the “Financing Parties”) all financial and complete copy ofall other information relating to NYSE Euronext and its Subsidiaries that is necessary, a new financing commitment that provides advisable or customary for such 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 financings or is reasonably requested by NASDAQ OMX or ICE (including any dates related theretoinformation reasonably deemed necessary by their respective Financing Parties) may be redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce assist in the aggregate principal amount preparation of such alternative financing customary offering or information documents to be funded on used for 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 syndication, marketing and completion of the Effective Time or NASDAQ OMX Financing and ICE Financing as contemplated, respectively, by the termination NASDAQ OMX Commitment Letter and ICE Commitment Letter, including (w) information regarding the business, operations, financial projections and prospects of this Agreement in accordance with Article IX, without the prior written consent of the Company, Parent NYSE Euronext 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 Subsidiaries and evaluations by NYSE Euronext and its advisors relating 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions contemplated by this Agreement, including the Offer and the Merger(x) information described in clause (b)(ix) below, (Dy) other information reasonably necessary, advisable or customary for the preparation of pro forma financial statements of the type required by Regulation S-K and S-X, and (z) monthly balance sheets and income statements internally prepared in accordance with past practice (the information described in this clause, collectively, the “Required Information”), (ii) making senior management of NYSE Euronext available for, and to participate in, meetings (including customary one-on-one meetings with the parties acting as lead arrangers for the Financing, presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies), (iii) assisting in the preparation of (A) any offering documents, bank information memoranda, prospectuses and similar documents that are customary, advisable or necessary for the NASDAQ OMX Financing and ICE Financing, and (B) materials for rating agency presentations, (iv) cooperating with the marketing efforts for the NASDAQ OMX Financing and ICE Financing (including consenting to the use of NYSE Euronext’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 NYSE Euronext or its Subsidiaries or the reputation or goodwill of NYSE Euronext or any of its Subsidiaries), (v) executing and delivering, and causing its Subsidiaries to execute and deliver, necessary, customary or advisable certificates (including a certificate of the principal financial officer of NYSE Euronext with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), legal opinions or other documents and instruments relating to collateral, guarantees and other matters ancillary to the NASDAQ OMX Financing and ICE Financing as may be reasonably requested by NASDAQ OMX or ICE, as applicable, as necessary, customary or advisable in connection with the NASDAQ OMX Financing and ICE Financing, (vi) assisting in (A) the preparation of and entering into one or more credit agreements, security agreements, guaranty agreements, currency or interest hedging agreements, or other agreements or (B) the amendment of any of NYSE Euronext’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements, or other agreements, in each case, on terms satisfactory to NASDAQ OMX and, if applicable, ICE, and that are reasonably requested by NASDAQ OMX and, if applicable, ICE, in connection with the NASDAQ OMX Financing or ICE Financing; provided, that no obligation of NYSE Euronext or any of its Subsidiaries under any such agreements or amendments shall be effective until the Effective Time, (vii) using its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (viii) providing 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 versions of such documents, if any, do not include material non-public information about NYSE Euronext or its Affiliates or securities, (ix) providing audited consolidated financial statements of NYSE Euronext (prepared on a carve-out basis after giving effect to the Internal Reorganization and ICE’s ownership of ICE Newco following the Effective Time) for the 2008, 2009 and 2010 fiscal years and for any subsequent fiscal year ended at least 90 days prior to the Closing Date, and unaudited consolidated financial statements of NYSE Euronext (prepared on a carve-out basis after giving effect to the Internal Reorganization and ICE’s ownership of ICE Newco following the Effective Time) for any interim quarterly or other period or periods of NYSE Euronext ended after the date of the most recent audited financial statements and at least 30 days prior to the Closing Date, (x) using its reasonable best efforts to ensure that the Financing Parties benefit materially adversely affect Parent’s ability from the existing lending and banking relationships of NYSE Euronext and its Subsidiaries, and (xi) cooperating reasonably with the Financing Parties’ due diligence, to consummate the extent not unreasonably interfering with the business of NYSE Euronext; provided, that until the Effective Time occurs, neither NYSE Euronext nor any of its Subsidiaries shall (x) be required to pay any commitment or other similar fee, (y) have any liability or any obligation under any credit agreement or any related document or any other agreement or document related to the NASDAQ OMX Financing or ICE Financing (or alternative financing that NASDAQ OMX or ICE may raise in connection with the transactions contemplated by this Agreement, including the Offer and the Merger ) or (Ez) materially adversely impact be required to incur any other liability in connection with the ability of Parent NASDAQ OMX Financing or ICE Financing (or any alternative financing that NASDAQ OMX or ICE may raise in connection with the transactions contemplated by this Agreement) unless reimbursed or reasonably satisfactorily indemnified by NASDAQ OMX or ICE, as applicable. NASDAQ OMX and ICE (1) shall promptly, upon written request by NYSE Euronext, reimburse NYSE Euronext for all reasonable and documented out-of-pocket costs (including reasonable attorneys’ fees) incurred by NYSE Euronext, any of its Affiliates’ to enforce Subsidiaries or their respective rights against Representatives in connection with the Debt cooperation of NYSE Euronext and its Subsidiaries contemplated by this Section 4.12, (2) each acknowledge and agree that NYSE Euronext, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, either the NASDAQ OMX Financing, the ICE Financing Sources or any alternative financing that NASDAQ OMX or ICE may raise in connection with the transactions contemplated by this Agreement and (3) shall severally and not jointly indemnify and hold harmless NYSE Euronext, its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement 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 NASDAQ OMX Financing and appoint additional arrangers, bookrunners, underwriters, agents, lenders ICE Financing and similar Debt Financing Entities that have not executed the Debt Financing Documents as in effect on the date hereof and, any information used in connection therewith, amend the economic and other arrangements except with respect to such appointmentsany information provided by NYSE Euronext, (2) modify pricing, (3) terminate its Subsidiaries 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 Financingtheir respective Representatives.” 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 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 2 contracts
Sources: Merger Agreement (Nasdaq Omx Group, Inc.), Merger Agreement (Intercontinentalexchange Inc)
Financing. (a) From Subject to the date terms and conditions of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXAgreement, Parent and its Affiliates shall use its reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisableadvisable to consummate, to arrange and obtain the Debt Financing and to consummate the Debt Financing on or prior to the Closing Date. Such actions shall include, but not be limited tothe Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein (subject to any “flex” provisions applicable thereto), using reasonable best efforts to: including by (i) comply with and maintain maintaining in effect the Debt Commitment Letter (subject to any amendmentLetter, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below); (ii) satisfynegotiating and entering into definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) consistent with the terms and conditions contained therein (including, or obtain a waiver thereofas necessary, the “flex” provisions contained in any related fee letter) and (iii) satisfying on a timely basis all Financing Conditions to basis, or obtaining waivers of, 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 conditions in the Debt Commitment Letter (including any “market flex” provisions (if any) related thereto) or on such other terms acceptable to and the Definitive Agreements. Parent that would not constitute an Adverse Effect on Financing as compared to those set forth in shall comply with its obligations under the Debt Commitment Letter delivered and Definitive Agreements in a timely and diligent manner. Parent shall keep the Company reasonably informed of material developments in respect of Parent’s efforts to arrange the Debt Financing. Prior to the Company on Closing, without the date hereof; and prior written consent of the Company, Parent shall not (ivA) in agree to, or permit, any amendment, modification or supplement of, or waiver under, the event that Debt Commitment Letter or any Definitive Agreement to the Offer Conditions have been satisfied extent such amendment, modification, supplement or waived or, upon funding waiver would (i) reduce the aggregate amount to be satisfied, consummate funded under the Debt Financing (including by instructing changing the amount of fees to be paid or original issue discount of the Debt Financing Sources or similar fees unless the aggregate amount to fund be funded under the Debt Financing in accordance with is increased by an equivalent amount) unless Parent has sufficient cash on hand available), (ii) adds new (or adversely modifies any existing) any conditions to the Debt Commitment Letter, and enforcing Parent’s rights under the Debt Commitment Letter and the definitive agreements relating to consummation of all or any portion of the Debt Financing).
, (biii) From adversely affects the date ability of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX, Parent and to enforce its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party rights against other parties to the Debt Commitment Letter of which Parent or its Affiliates becomes aware; provided that none the Definitive Agreements as so amended, replaced, supplemented or otherwise modified, 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; or (iv) could otherwise reasonably be expected to prevent, impede or delay the consummation of the Merger Sub and the other transactions contemplated by this Agreement or (B) terminate any Debt Commitment Letter or any Definitive Agreement. Parent shall promptly deliver to the Company copies of any such amendment, modification or waiver of any Debt Commitment Letter. Notwithstanding the foregoing, (x) Parent may amend the Debt Commitment Letter solely to add investors, lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letter as of the date hereof and, in connection therewith, amend the allocation of economics with respect to the existing and additional investors, lenders, lead arrangers, bookrunners, syndication agents or similar entities, if the addition of such additional parties and amendment of additional terms do not impact the aggregate amount of the Debt Financing to be funded at the Closing and (y) in the event that Parent is required pursuant to disclose or this Section 7.11 to provide any such information, the disclosure of which, in the judgement of Parent upon advice of outside counsel, information that is subject to attorney-client or similar privilege, Parent may withhold disclosure of such information so long as Parent gives notice to the Company of the fact that it is withholding such information and thereafter Parent shall use its reasonable best efforts to cause such information to be provided in a manner that would not reasonably be expected to waive the applicable privilege or which would be in violation of any confidentiality obligationprotection.
(cb) In 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 any “flex” provisions (if any)applicable thereto) (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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 Adverse Effect on Financing (as defined below) as compared to those set forth contemplated in the Debt Commitment Letter delivered and such portion is necessary to the Company on the date hereof, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 fund the transactions contemplated by this Agreement, including Parent shall promptly notify the Offer Company and the Mergershall use its reasonable best efforts to take, (D) materially adversely affect Parent’s ability or cause to consummate the transactions contemplated by this Agreementbe taken, including the Offer all actions and the Merger to do, or (E) materially adversely impact the ability of Parent cause to be done, all things necessary, proper or any of its Affiliates’ advisable 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, 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 arrange to obtain alternative sources of debt financing from alternative sources for such portion in lieu of all or a portion of an amount equal to 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 CompanyIf obtained, Parent shall keep promptly deliver to the Company informed in reasonable detail true and complete copies of the status a new debt financing commitment pursuant to which any such alternative source shall have committed to provide Parent with any portion of Parent’s efforts to arrange the Debt Financing. Any alternative, substitute or replacement debt financing obtained by Parent References in accordance with this paragraph and Agreement to (i) the previous paragraph is the “Alternative Financing.” For purposes of this Agreement, references to “Debt Financing” shall include the debt 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 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 amended, modified or replaced, (ii) the date hereof “Debt Commitment Letter” shall include such documents as amended, modified or replaced and (including iii) “Debt Financing Sources” shall include the market flex provisions providers of debt financing under such documents as amended, modified or replaced (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 case of each of clauses (including the market flex provisions i), (if anyii) and (iii)). Parent and Merger Sub expressly acknowledge and agree that their obligations under this Agreement, including their obligations replacement with alternative financing and alternative debt financing commitments pursuant to consummate this Section 7.11 from and after such amendment, modification or replacement); provided, that fee letters or side letters which do not contain “flex” or other provisions which affect the Offer and terms or amount, availability or conditions of the Merger, are Debt Financing shall not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of financingbe required to be provided.
Appears in 2 contracts
Sources: Merger Agreement (Virtu Financial, Inc.), Merger Agreement (Investment Technology Group, Inc.)
Financing. (a) 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 Merger Subsidiary shall use their reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisable, advisable to arrange and obtain the Debt Financing and to consummate the Debt Financing on or prior to the Closing 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 amendmentFinancing and the Financing Commitments, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below); (ii) satisfynegotiate and enter into definitive financing agreements with respect to the Financing and Financing Commitments on terms and conditions (including the “flex” provisions) contemplated by the Financing Commitments, or obtain a waiver thereofso that such agreements are in effect as promptly as practicable after the date hereof but in any event no later than the Acceptance Time, (iii) cause their respective Representatives to cooperate in the preparation of all documents (including offering memoranda, private placement memoranda, prospectuses and road show presentations, if any) and the making of all filings in connection with the Financing and the other transactions contemplated by the Financing Commitments, and in executing and delivering all documents and instruments related to the Financing Commitments, (iv) satisfy on a timely basis all conditions applicable to Parent and Merger Subsidiary in the Financing Conditions Commitments that are within its control and comply with its obligations thereunder, (v) enforce their rights under the Financing Commitments in the event of a breach by the Financing Sources that impedes or delays the consummation of the Financing, including seeking specific performance of the parties thereunder and (vi) otherwise taking, or causing to be taken, all actions and doing, or causing to be done, all other things necessary, proper or advisable to consummate the Financing at or prior to the extent within the control of Acceptance Time. 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 Merger Subsidiary 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 provide 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 copies of all final documents relating to the Debt FinancingFinancing and shall keep the Company fully informed of material developments in respect of the financing process relating thereto. Prior to the Acceptance Time, Parent and Merger Subsidiary shall not agree to, or permit, any amendment or modification of, or waiver under, the Financing Commitments or other final documentation relating to the Financing in a manner that (x) would materially delay or prevent the Closing in any respect or (y) is otherwise adverse to the Company in any material respect, without the prior written consent of the Company (which consent may be withheld in its sole discretion).
(b) From In the period between the date hereof and the Acceptance Time, upon request of this Agreement until Parent and Merger Subsidiary, the earlier Company shall, and shall cause its Subsidiaries to, reasonably cooperate with Parent and Merger Subsidiary in connection with the Financing, including, (i) preparation of all required financial statements relating to the Company and its Subsidiaries, (ii) reasonable participation in meetings and road shows, if any, (iii) the provision of information relating to the Financing reasonably requested by Parent and Merger Subsidiary, (iv) reasonable assistance in the preparation of offering memoranda, private placement memoranda, prospectuses and similar documents of Parent and Merger Subsidiary and (v) after the Acceptance Time, facilitate the perfection of the Effective Time or lenders’ security interest in the termination of this Agreement in accordance with Article IX, Parent and its Affiliates shall give collateral contemplated by the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or its Affiliates becomes awareFinancing; provided that none nothing herein shall require such cooperation from any the Company or any of its Subsidiaries to the extent it would unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Parent or and Merger Sub Subsidiary shall be required to disclose or provide any promptly, upon request by the Company, reimburse the Company for all documented out-of-pocket expenses incurred by the Company, its Subsidiaries and their respective Representatives in connection with such information, the disclosure of which, in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligationcooperation.
(c) In If, notwithstanding the event all use of reasonable best efforts by Parent and Merger Subsidiary to satisfy its obligations under Section 8.05(a), any of the Financing or the Financing Commitments (or any portion of definitive financing agreement relating thereto) expire or are terminated prior to 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 Acceptance Time, in whole or in part, for any provision of this Agreement or failure to satisfy the conditions set forth in Section 8.1 and Annex 1)reason, then Parent and its Affiliates Merger Subsidiary shall (i) promptly notify the Company thereof of such expiration or termination and the reasons therefor, therefor and (ii) use reasonable best efforts to obtain promptly arrange for alternative financing (the “Required Financing Alternative”) from other sources to replace the same financing contemplated by such expired or alternative Debt terminated commitments or agreements, which Required Financing Entities on terms and conditions, taken as a whole, no less favorable to Parent than the Financing Conditions, Alternative (x) shall not involving include any conditions that would constitute an Adverse Effect on Financing (as defined below) as compared are more onerous than or in addition to those the conditions set forth in the Debt Commitment Letter delivered to the Company on the date hereof, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iiiy) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such alternative financing; provided that any provisions set forth shall be 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 sufficient to pay for the consummation of the transactions contemplated by this Agreement
(d) Notwithstanding anything to the contrary contained in Section 8.05(a), including at any time Parent or Merger Subsidiary may replace the Offer Financing with alternative financing arrangements which (i) provide Parent and the Merger, (D) materially adversely affect Parent’s ability Merger Subsidiary with sufficient funds to consummate the transactions contemplated by this AgreementAgreement prior to or concurrent with the Acceptance Time and (ii) do not prevent or materially impair or delay the Closing (together with the Required Financing Alternative, including the Offer and “Financing Alternative”). In the Merger or (E) materially adversely impact the ability of event Parent or Merger Subsidiary replaces the Financing with any Financing Alternative, the terms 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 (ASection 8.05(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 shall no longer apply 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 but 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 thereafter apply 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 respect to the extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 financingAlternative.
Appears in 2 contracts
Sources: Merger Agreement (MediaMind Technologies Inc.), Merger Agreement (DG FastChannel, Inc)
Financing. (a) From the date Each 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 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, 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 Debt Financing on or prior to the Closing Date. Such actions shall include, but not be limited to, including (i) using reasonable best efforts to: to (iA) comply with and maintain in effect the Debt Commitment Letter and in all material respects comply with all of their respective obligations thereunder and (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; (iiiB) negotiate, execute enter into and deliver Debt Financing Documents to the extent required to pay the Required Amount (after taking into account any cash definitive agreements with respect thereto 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 and conditions not less favorable in the aggregate, to Parent than those contained in the Debt Commitment Letter (including any 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 anydetermined 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) thereto to the extent the failure to comply with such obligations would adversely impact the timing of the Closing or on such other terms acceptable the availability at the Closing of sufficient aggregate proceeds of the Debt Financing to Parent consummate the transactions contemplated by this Agreement. In the event that would not constitute an Adverse Effect on Financing as compared all conditions to those set forth funding the commitments contained in the Debt Commitment Letter delivered to the Company on the date hereof; and (iv) in the event that the Offer Conditions Letters have been satisfied or waived or, upon funding would be satisfied, consummate each of Parent and Merger Sub shall, and shall cause their respective Subsidiaries to, use reasonable best efforts to cause the Debt Financing (including by instructing the Debt Financing Sources to fund the Debt Financing in accordance with required to consummate the Debt Commitment Letter, transactions contemplated by this Agreement and enforcing Parent’s to pay related fees and expenses on the Closing Date. Parent shall use its reasonable best efforts to enforce all of its rights under the Debt Commitment Letter Letters. Parent and/or Merger Sub shall pay, or cause to be paid, as the same shall become due and the definitive agreements relating to payable, all fees and other amounts under the Debt Financing)Commitment Letters.
(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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or that any portion of the Debt Financing becomes unavailable on and such portion is necessary to consummate the terms and conditions transactions contemplated by this Agreement (except in accordance with the express terms set forth in the Debt Commitment Letter (Letters, including the flex provisions (if any)) (other than as a result of the Company’s breach of any provision of this Agreement or failure entry into definitive agreements for a “Qualifying Term Loan Facility” under the applicable Debt Commitment Letters with commitments subject to satisfy substantially the same conditions as those set forth in Section 8.1 and Annex 1the 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), then Parent and its Affiliates Merger Sub shall (i) promptly notify the Company thereof and the reasons therefor, (ii) use their reasonable best efforts to obtain obtain, as promptly as practicable following the occurrence of such event, alternative debt financing for any such portion from the same or alternative Debt Financing Entities debt sources on terms and conditions, taken as a whole, no less favorable to Parent and Merger Sub than the Financing Conditions, not involving any terms and conditions that would 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, that, when taken together with the portion of the Debt Financing that remains available and (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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such alternative financing; provided that any provisions set forth in such new financing commitment relating to fees, pricing terms, “market flex” provisions (if anythereof) and other terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit will still enable Parent and securitization facilities) and other sources of immediately available funds), (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 transactions contemplated by this Agreement, including the Offer and the Merger, (D) materially adversely affect Parent’s ability Merger Sub to consummate the transactions contemplated by this AgreementAgreement (“Alternative Financing”), including and (ii) promptly notify the Offer 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 (EB) 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 impact affect the ability of Parent or any of its Affiliates’ to enforce their respective its 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)relating thereto, each an “Adverse Effect on Financing”); provided it being understood and agreed that in any event, Parent may, without the prior written consent may amend any of the Company, amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter, including (1) Letters or any definitive agreement relating thereto to add and appoint additional lenders, arrangers, bookrunners, underwriters, agents, lenders and managers or similar Debt Financing Entities 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 Documents as in effect on the date hereof and, in connection therewith, amend the economic and other arrangements Source with respect to such appointments, (2) modify pricing, (3) terminate Financing Source’s failure or reduce any anticipated failure to fund its commitments under the any Debt Financing Commitment Letter or definitive agreement in order to obtain alternative sources of debt financing connection therewith 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 manner that would not reasonably be reasonably expected to result in an Adverse Effect on Financingrender it unable to consummate the transactions contemplated by this Agreement. Upon request of the Company, Parent shall keep the Company reasonably informed in reasonable detail on a reasonably current basis of the status of Parent’s and its Subsidiaries’ efforts to arrange consummate the Debt Financing. Any alternative, substitute including providing copies of any amendment, modification or replacement debt financing obtained by Parent of the Debt Commitment Letter (provided that any fee letter may be redacted to remove fee amounts, the rates and amounts included in accordance with this paragraph and the previous paragraph is the “Alternative Financing.market flex” For purposes provisions and certain other economic terms (none of this Agreementwhich could adversely affect the amounts, references to “availability, timing or conditionality of the Debt Financing” )). Parent shall include give the financing contemplated Company prompt notice of any (i) material breach or material default by any Alternative Financing and references party to “the Debt Commitment Letter”Letters or the definitive agreements related thereto of which Parent obtains knowledge, “(ii) actual or, to the knowledge of Parent, threatened in writing withdrawal, repudiation, or termination of any of the Debt Fee Letters”Commitment Letters or such definitive agreements, “or (iii) material dispute or disagreement between or among any parties to any of the Debt Commitment Letters or such definitive agreements with respect to the obligations to fund the Debt Financing Documents”, “or the amount of the Debt Financing Entities”, “Debt Financing Sources”, or “Financing” shall include the documents to be funded at Closing.
(or commitments or financing sources, as applicablee) Notwithstanding anything contained in connection with any Alternative Financing to the extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same extent as the Debt Financing. Notwithstanding anything to the contrary contained in this Agreementcontrary, 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 expressly acknowledges and Merger Sub expressly acknowledge and agree agrees 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 and Merger Sub’s receipt of obligations hereunder are not conditioned in any manner upon Parent or Merger Sub obtaining any financing.
Appears in 2 contracts
Sources: Merger Agreement (Celgene Corp /De/), Merger Agreement (Bristol Myers Squibb Co)
Financing. (a) 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 Acquisition Sub shall use reasonable best efforts to take, or cause to be taken, all actionsactions necessary, and use reasonable best efforts proper or advisable to do, or cause to be done, all things reasonably necessary or advisable, to arrange consummate and obtain the Debt Financing and to consummate the Debt Financing on or prior to the Closing Date. Such actions shall includeFinancing, but not be limited to, including using reasonable best efforts to: (i) comply with and maintain in effect the Debt Commitment Letter (subject 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 any amendment, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below)Definitive Financing Agreements to the extent executed prior to the Effective Time promptly after execution thereof; (ii) satisfy, or obtain a waiver thereof, satisfy on a timely basis (or obtain waiver of) all conditions under the Commitment Letter and, if applicable, the Definitive Financing Conditions Agreements applicable to the extent within the control of Parent and its AffiliatesAcquisition Sub; and (iii) negotiateas soon as reasonably practicable, execute and deliver Debt Financing Documents to consummate, or cause the extent required to pay the Required Amount (after taking into account any cash on handconsummation of, 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) 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 Offer Conditions 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 or waived or, upon funding would be satisfied, consummate Parent and Acquisition Sub shall use their reasonable best efforts to cause the 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 by instructing the Debt Financing Sources through litigation, to cause such lenders 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 such 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 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 Affiliates shall give rights under, the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent and/or substitute other debt or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event 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 (C) 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 by in 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 Section 8.1 and Annex 1)Letter, then Parent and its Affiliates Acquisition Sub shall (i) promptly notify the Company thereof and the reasons therefor, (ii) shall use their reasonable best efforts to arrange and obtain alternative financing from the same or and/or alternative Debt Financing Entities on financing sources alternative financing upon terms and conditionsconditions not materially less favorable, taken as a whole, no less favorable to Parent Parent, Acquisition Sub and, with respect to conditions or contingencies to such alternative financing, the Company than the Financing Conditions, not involving any conditions that would 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 hereofLetter, thatin an amount sufficient, when taken together with any available cash resources, to consummate the portion of Merger, the Debt Financing that remains available Offer and any cash on hand, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) and the other sources of immediately available funds, is at least equal to the Required Amount, 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: (x) of any breach or potential breach threatened in writing by any 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 the Commitment Letter or the Definitive Financing Agreement that occurs prior to the funding thereunder; (y) the receipt of any written notice or other written communication from any other party thereto with respect to any breach, default, termination or repudiation by any party to any of the Commitment Letter or 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 information 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.
(b) Prior to the Acceptance Time, the Company shall, and shall cause each of its Subsidiaries and the Representatives of the Acquired Corporations to provide, 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 information relating to the Company and its Subsidiaries;
(iii) use providing Parent reasonable best 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 Financing;
(iv) providing reasonable access at reasonable times to properties, books and records of the 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 obtaincause 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 when obtainedaccounting 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 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 fact that it is withholding such information or documents and thereafter the Company 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) take any action that will conflict with a true and complete copy or violate such Acquired Corporation’s organizational documents or any Legal Requirement or result in the contravention of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms or that would reasonably be expected to reduce result in a violation or breach of, or default under, any material Contract to which an Acquired Corporation is 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 aggregate principal amount of Surviving Corporation and/or its Subsidiaries as the obligors on such alternative Financing); and (6) no Acquired Corporation shall be required to enter into or approve any financing to be funded on the Closing Date or impose additional conditions precedent purchase agreement for any Financing prior to the funding Effective Time. Parent shall, reasonably promptly upon request by the Company, reimburse the Company for all out of pocket costs and expenses incurred by any Acquired Corporation in connection with such alternative financing on cooperation and assistance. Parent shall indemnify and hold harmless the Closing Date.
(d) From the date of this Agreement until the earlier of 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 or the termination of this Agreement in accordance with Article IX, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 or the arrangement of any Financing and any information utilized in connection therewith (other than historical information relating to the extent permitted 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 Acquired Corporations or their respective Representatives, as determined by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions a final non-appealable judgment of this Agreement to the same extent as the Debt Financinga court of competent jurisdiction. Notwithstanding anything to the contrary contained in this Agreement, the Financing is and will remain the sole responsibility of Parent and Acquisition Sub and none of Acquired Corporations or any of their respective Representatives: (x) shall be required to waive or amend any terms of this Agreement or agree to pay any commitment or other fees or reimburse any expenses prior to the Effective Time, or give any indemnities that are not contingent on the Effective Time; or (y) shall have any liability or incur any losses, damages or penalties with respect thereto.
(c) If a Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing in no event 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 covenants in Section 6.12(a) and Section 6.12(b) with respect to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and with respect to such other financing to the same extent that Parent and the Company would have been obligated to comply with respect to the Debt Financing.
(d) The Company hereby consents to the use of the trademarks, service marks and logos of the Acquired Corporations in connection with any Financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Affiliates be required to pay any fees Representatives or any interest rates applicable other Person pursuant to this Section 6.12 shall be governed by the provisions of the Confidentiality Agreement; provided, that notwithstanding the terms of the Confidentiality Agreement, upon notice to the Alternative 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 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 anyalternative financing to be entered into pursuant to Section 6.12(a)) less favorable subject to customary confidentiality arrangements with such Persons regarding such information (taken as a whole) to Parent than such term contained it being acknowledged by the Company that the confidentiality provisions set forth in the Debt Commitment Letter are customary and acceptable) or as in effect on otherwise permitted by the date hereof (including the market flex provisions (if any)). Parent and Merger Sub expressly acknowledge and agree that their obligations under this Confidentiality 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 2 contracts
Sources: Merger Agreement (Riverbed Technology, Inc.), Merger Agreement (Opnet Technologies Inc)
Financing. 16.1 Landlord agrees that Tenant shall have the absolute right during the Term to place one (a) 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 use 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 Debt Financing on or prior to the Closing 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 thereto1) or more deeds of trust, mortgages or similar security interests 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or any portion of Tenant's leasehold interest in the Debt Financing becomes unavailable Premises and/or any improvements therein; provided, however, and except as provided below Tenant shall have no right whatsoever to encumber Landlord's fee title and reversionary interest in the Premises and such security instrument shall encumber only Tenant's rights under this Lease and the leasehold estate created hereby.
16.2 Notwithstanding any other provision of this Lease to the contrary, in the event Tenant or any sublessee of Tenant shall obtain a loan for construction of improvements on the Premises or any other loan secured by Tenant's leasehold interest in the Premises, Landlord, upon request by Tenant, shall subordinate this Lease and Landlord's interest therein to such construction loan and shall timely execute any and all documents reasonably requested by the construction lender to evidence such subordination, however in no event shall Landlord be required to subordinate its fee title or reversionary interest in the Premises to such construction loan.
16.3 In the event of a termination of this Lease prior to the expiration of the Term, Landlord, within thirty (30) days prior to the termination of the Lease, shall serve upon any institutional lender which holds a first priority mortgage encumbering Tenant's leasehold interest in the Premises (a "Lender") written notice of such termination, together with a statement of any and all sums which would be due under the Lease as of the date of notice (but for the termination of the Lease) and a description of any and all events of default. Within thirty (30) days from its receipt of the notice of termination, Lender shall have the option to obtain a new lease for the Premises by providing Landlord with written notice of its desire to exercise such option. Upon Landlord's receipt of such notice, Landlord shall enter into a new lease for the Premises with Lender which shall:
(i) Commence as of the date of the termination of the Lease, and shall be effective for the remainder of the Term, and contain all of 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 Adverse Effect on Financing (as defined below) as compared to those were set forth in the Debt Commitment Letter delivered Lease, including, but not limited to, those pertaining to rental payments; and
(ii) Require the tenant under the new lease to cure any monetary events of default under the terminated Lease. Landlord shall promptly take all actions necessary to evict Tenant or any other unauthorized party from the Premises and, subject to the Company on rights of any sublessee, shall provide the tenant under the new lease with the sole and exclusive possession of the Premises upon execution of the new lease.
16.4 In the event of a termination of the Lease prior to the expiration of the Term and either (i) there exists no Lender, or (ii) the Lender does not elect to exercise its option in Section 16.3 above, then Landlord, (x) within thirty (30) days prior to the termination of the Lease if there is no Lender, or (y) within five (5) days subsequent to the expiration or waiver of Lender's option as described in Section 16.3 above if there is a Lender, shall serve upon any sublessee written notice of such termination, together with a statement of any and all sums which would be due under the Lease as of the date hereofof notice (but for the termination of the Lease) and a description of any and all events of default. Within thirty (30) days from its receipt of notice of termination, thatthe sublessee shall have the option to obtain a new lease for the Premises by providing with written notice of its desire to exercise such option. Upon Landlord's receipt of such notice, when taken together Landlord shall enter into a new lease for the Premises with the portion sublessee which shall (a) commence as of the Debt Financing day of the termination of the Lease and shall be effective for the remainder of the term of the sublease and contain all of the terms and conditions that remains available were set forth in a sublease agreement between Tenant and any cash on handsuch sublessee, available lines including, but not limited to, those pertaining to rental payments and options to renew the term of credit (including under Borrower’s existing revolving credit and securitization facilities) and other sources of immediately available funds, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such eventsublease, and (iiib) use reasonable best efforts require the subtenant under the new lease to obtaincure any monetary events of default under the terminated Lease. Landlord shall promptly take all take action necessary to evict Tenant or any other unauthorized party from the Premises, and when obtainedshall provide sublessee with the sole and exclusive possession of the Premises upon execution of the new lease.
16.5 For the benefit of any Lender, provide Landlord agrees, subject nevertheless to all of the Company with a true and complete copy of, a new financing commitment that provides for such alternative financing; provided that any provisions set forth in such new financing commitment relating to fees, pricing terms, “market flex” provisions (if any) covenants, agreements, provisions, conditions and other terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same extent as the Debt Financing. Notwithstanding anything to the contrary limitations contained in this AgreementLease, in no event not to accept a voluntary surrender of this Lease at any time during which Lender shall Parent hold an outstanding mortgage, deed to secure debt 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 other security interest.
16.6 Landlord and Merger Sub expressly Tenant hereby acknowledge and agree that their obligations under any Lender and any sublessee is an intended third party beneficiary of 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 financingSection 16.
Appears in 2 contracts
Sources: Net Ground Lease (Medical Properties Trust Inc), Net Ground Lease (Medical Properties Trust Inc)
Financing. (a) From The Company and its Subsidiaries shall obtain customary payoff letters with respect to the Existing Credit Agreement (the payoff of such facilities, together, the “Debt Payoff”) and deliver drafts of such payoff letters to Parent on or prior to the date that is three (3) business days prior to Closing and executed copies of this such payoff letters to Parent on or prior to the date that is one (1) business day prior to Closing (or, in each case, such later date as Parent may consent to), which payoff letters shall (i) set forth the aggregate amount required to be paid to the lenders and other parties to the Existing Credit Agreement until to pay the earlier obligations thereunder (other than contingent indemnification obligations not yet payable) in full at Closing and the wire transfer instructions for the payment of such amount, (ii) confirm that upon the payment of the Effective Time amounts set forth in clause (i) above, (x) all obligations of the Company and its Subsidiaries under the Existing Credit Agreement shall be paid in full (other than contingent indemnification obligations not yet payable), (y) all guarantees by the Company and its Subsidiaries of, and any liens or security interests on the termination equity or assets of the Company or any of its Subsidiaries securing, the obligations under the Existing Credit Agreement shall be released and terminated in full and (z) the Existing Credit Agreement shall be terminated in full (except for customary provisions that shall survive the payment in full of the obligations thereunder) and (iii) otherwise be in form and substance reasonably acceptable to Parent, together with any other certificates, filings, notices and other documents reasonably requested by Parent to effect or evidence the payoff and releases set forth in this Agreement sentence. The Company shall, and shall cause its applicable Subsidiaries to, use their respective reasonable best efforts to, and to cause their respective Representatives to, provide cooperation reasonably requested by Parent in accordance connection with Article IX, any Debt Payoff.
(b) Each of Parent and its Affiliates Merger Subs shall use its reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisable, advisable to arrange and obtain the Debt Financing and to consummate the Debt Committed Financing on or prior the terms and subject only to the Closing Date. Such actions shall includeconditions expressly set forth in the Commitment Letter, but not be limited to, including using its reasonable best efforts to: 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 permitted by clause this Section 5.16) until the Mergers and the other Transactions contemplated by this Agreement (dincluding the funding of the Committed Financing) below); are consummated, (ii) satisfytimely negotiate, or obtain a waiver thereof, on a timely basis all Financing Conditions enter into and deliver definitive agreements with respect to the extent within Committed Financing contemplated by the control of Parent and its Affiliates; (iii) negotiate, execute and deliver Debt Financing Documents Commitment Letter on or prior to the extent required Closing on the terms and subject only to pay the Required Amount (after taking into account any cash on hand, available lines of credit conditions expressly set forth therein (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” flex provisions (if any) related thereto) or and on such other terms acceptable agreed to by Parent and the Committed Financing Sources that would not constitute have an Adverse Effect on Financing as compared Financing, (iii) satisfy or cause to those be waived on a timely basis (and in any event at or prior to the Closing) all conditions applicable to Parent set forth in the Debt Commitment Letter delivered to or such definitive agreements and otherwise comply with all of Parent’s obligations thereunder (including the Company on the date hereof; payment of any related fees and expenses), in each case, that are within Parent’s control, and (iv) in upon the satisfaction or waiver of such conditions, consummate the Committed Financing at or prior to the Closing Date. In the event that the Offer Conditions all conditions set forth in Section 6.01 and Section 6.02 have been satisfied or waived or, upon funding would be satisfiedof the Committed Financing, consummate shall have been satisfied or waived, Parent shall cause the Debt Financing (including by instructing the Debt Committed Financing Sources providing the Committed Financing to fund on the Debt Closing Date the Committed Financing on the terms and subject only to the conditions expressly set forth in accordance with the Debt Commitment Letter. Parent shall fully pay, or cause to be paid, as the same shall become due and enforcing Parent’s rights payable, all fees and other amounts under or arising pursuant 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligationLetter.
(c) In Notwithstanding 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 Section 8.1 and Annex 1)foregoing, then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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 IXnot, without the prior written consent of the Company, Parent agree to or permit any termination or rescission of or amendment, restatement, amendment and its Affiliates shall not amendrestatement, modifysupplement or modification to be made to, or grant any waiver or consent of any provision under, the Commitment Letter or the definitive agreements relating to the Committed Financing, if such termination, rescission, amendment, restatement, supplement, restate, assign, substitute or replace the Debt Commitment Letter or any Debt Financing Document if such amendment, modification, supplement, restatement, assignment, substitution waiver or replacement consent would be reasonably expected to (A) impose additional reduce (or have the effect of reducing) the aggregate cash amounts of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount) such that Parent cannot satisfy (or cause to be satisfied) the Required Amount on the Closing Date (after taking into consideration any other immediately available cash or other sources of funds reasonably available and subject to terms and conditions precedent or expand upon materially no less favorable than the conditions precedent to the funding of Committed Financing to the Debt FinancingParent), (B) reduce impose new or additional conditions to the amount availability or funding of the Debt Committed Financing or otherwise expand or adversely amend, modify or waive any conditions to the net cash proceeds available from Committed Financing in a manner that, in each case, could reasonably be expected to impede, materially delay or prevent Closing (or satisfaction of the Debt conditions to the Committed Financing to an amount that is less than at 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 fundsClosing), (C) prevent result in the termination, withdrawal, repudiation or materially delay or make materially less likely the funding recission of the Debt Financing (Commitment Letter or the satisfaction release or terminate any of the Financing Conditions) on the Closing Date commitments or materially impair, delay or prevent the consummation obligations of any of the transactions contemplated by this Agreement, including the Offer and the Merger, Committed Financing Sources except as permitted in clause (f) below or (D) materially adversely affect Parent’s ability to consummate the transactions contemplated by this Agreement, including the Offer and the Merger or (E) materially adversely impact the ability of each of Parent or any of its Affiliates’ to enforce their respective its rights against the Debt Committed Financing Sources or any of the other parties to the Debt Commitment Letters or the definitive agreements with respect thereto (clauses (A) through (ED), each collectively, an “Adverse Effect on Financing”); . Parent shall promptly deliver to the Company copies of any termination, rescission, amendment, restatement, supplement, modification, waiver or consent to or under any Commitment Letter or the definitive agreements relating to the Committed Financing (provided that any fee letter may be redacted in a manner consistent with Redaction Parameters).
(d) If any portion of the Committed Financing becomes unavailable or Parent maybecomes aware of any event or circumstance that could reasonably be expected to make any portion of the Committed Financing unavailable, in each case, on the terms and conditions (including any applicable “market flex” provisions) contemplated by the Commitment Letter, Parent shall promptly notify the Company in writing and, as promptly as reasonably practicable following the occurrence of such event (but not later than one business day prior to the date Parent or Merger Subs are required to consummate the Closing in accordance with this Agreement), (A) use its reasonable best efforts to arrange and obtain alternative financing from alternative sources (such financing, the “Alternate Financing”) (1) in an amount such that Parent can satisfy (or cause to be satisfied) the Required Amount on the Closing Date (after taking into consideration any other immediately available cash or other sources of funds reasonably available and subject to terms and conditions materially no less favorable than the conditions to the Committed Financing to the Parent), (2) on conditions not less favorable to Parent and Merger Subs than the conditions (including the “market flex” provisions, if any) set forth in the Commitment Letter as of the date of this Agreement and (3) which would not, without the prior written consent of the Company, have an Adverse Effect on Financing and (B) obtain a new financing commitment letter or definitive documentation (including any note purchase agreement, indenture or credit agreement), as applicable, with respect to such Alternate Financing; provided that (x) any such Alternate Financing shall not obligate the Company prior to the Closing as a surety, guarantor or indemnitor or to extend credit to any person and (y) any failure to obtain Alternate Financing shall not relieve Parent or Merger Subs of any obligation hereunder. Parent shall promptly deliver to the Company true, correct and complete copies of any commitment letters and fee letters or the definitive agreements relating to an Alternate Financing (provided that any fee letter may be redacted in a manner consistent with Redaction Parameters).
(e) Upon written request of the Company, Parent shall keep the Company reasonably informed on a timely basis and in reasonable detail of the status of Parent’s and Merger Subs’ efforts to obtain the Committed Financing and to satisfy the conditions thereof, including providing copies of any amendment, modification or replacement of the Commitment Letter (provided that any fee letter may be redacted in a manner consistent with Redaction Parameters). Without limiting the generality of the foregoing, Parent shall give the Company prompt (but in any event within two business days’) notice of, and keep the Company informed on a current basis and in reasonable detail of, (i) any actual breach, default, termination or repudiation (or any event or circumstance that, with or without due notice, lapse of time or both, would reasonably be expected to give rise to any breach, termination, repudiation or default) by any party to the Commitment Letter, or any definitive agreements related to the Committed Financing, in each case of which Parent becomes aware, (ii) the receipt of any written notice or other written communication, in each case received from any Committed Financing Source with respect to any (1) actual or threatened default, termination, withdrawal or repudiation by any party to the Commitment Letter or definitive agreements related to the Committed Financing or (2) material dispute or disagreement between or among any parties to the Commitment Letter or definitive agreements related to the Committed Financing or any provisions of the Commitment Letter, (iii) the occurrence of an event or development that would, in Parent’s good faith belief, adversely impact the ability of Parent to obtain all or any portion of the Committed Financing contemplated by the Commitment Letter subject only to the conditions set forth therein; (iv) any refusal by a Committed Financing Source to provide, or any writing expressing an intent to refuse to provide, all or any portion of the Committed Financing contemplated by the Commitment Letter on the terms set forth therein (including allowing for any “market flex” terms) or expresses in writing that such person does not intend to enter into all or any portion of definitive documentation related to the Committed Financing or to consummate the transactions contemplated thereby; (v) any event or development that would reasonably be expected to adversely impact in any material manner the ability of Parent to obtain all, or any portion of, the Committed Financing contemplated by the Commitment Letter on the terms and conditions, in the manner or from the sources contemplated by the Commitment Letter or if at any time for any other reason Parent no longer believes in good faith that it will be able to obtain all or any portion of the Committed Financing on the terms and conditions (including any “market flex” terms), in the manner or from the sources contemplated by the Commitment Letter; and (vi) expiration or termination of the Commitment Letter prior to the funding of the Committed Financing on the Closing Date for any reason, in each case of clauses (i) through (vi), except to the extent that (I) notwithstanding such event, the Parent will be able to satisfy the Required Amount on the Closing Date (after taking into consideration any other immediately available cash or other sources of funds reasonably available and subject to terms and conditions materially no less favorable than the conditions to the Committed Financing to the Parent) and (II) the Commitment Letter may be replaced as permitted in clause (c) above or clause (f) below. As soon as reasonably practicable, but in any event upon the earlier of (x) within two business days of the date the Company delivers to Parent a written request and (y) the Closing Date, Parent shall provide any information reasonably requested by the Company relating to any circumstance referred to in the immediately preceding sentence. Notwithstanding the foregoing, in no event shall Parent or Merger Subs be under any obligation to disclose any information pursuant to this clause (e) that would waive the protection of attorney-client or similar privilege to the extent such privilege is asserted in good faith, but such party shall use reasonable best efforts to disclose such information in a way that would not jeopardize such privilege.
(f) Notwithstanding anything herein to the contrary, Parent may (x) amend, modify, supplement, restate, assignreplace, substitute or replace modify the Debt Commitment Letter, including Letter to (1) to add and appoint additional agents, co-agents, lenders, lead arrangers, joint bookrunners, underwriters, agents, lenders and managers or similar Debt Financing Entities entities that have not executed the Debt Financing Documents such Commitment Letter as in effect on of the date hereof andhereof, together with any ministerial changes related thereto or (2) implement or exercise any “market flex” provisions contained in connection therewith, amend the economic Commitment Letter and other arrangements (y) terminate or replace any Commitment Letter in order to enter into definitive financing documents with respect to such appointments, (2) modify pricing, (3) terminate the Committed Financing or reduce any commitments under the Debt Financing in order to otherwise 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 Committed Financing, in each casecase of clauses (x) and (y), so long as to the extent such amendments amendment, supplement, replacement, substitution, modification or termination would not be reasonably expected to result in have an Adverse Effect on Financing. Upon request After any termination, amendment, restatement, supplement, modification, replacement or waiver of the Company, Parent shall keep Commitment Letter with respect to 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 Committed Financing in accordance with this paragraph Section 5.16, Parent shall promptly (and, in any event upon the earlier of (x) two business days and (y) the previous paragraph is Closing Date), deliver to the “Alternative Financing.” Company a true, correct and complete copy thereof (provided that any fee letter may be redacted in a manner consistent with Redaction Parameters). For purposes of this AgreementAgreement (other than Section 4.12), (A) any reference in this Agreement to the “Committed Financing” shall mean financing contemplated by the Commitment Letter as amended, restated, supplemented, modified, waived or replaced in accordance with this Section 5.16 (including any replacement financing and/or any financing contemplated by an Alternate Financing), (B) any reference in this Agreement to the “Commitment Letter” shall be deemed to include the Commitment Letter (if in effect). any fee letter (any fee letter entered into in connection with any replacement financing and/or any Alternate Financing) and any definitive documentation for any Committed Financing (including any replacement financing and/or any financing contemplated by an Alternate Financing), in each case, as amended, restated, supplemented, modified, waived or replaced in accordance with this Section 5.16, (C) references to the “Debt Committed Financing Sources” shall include each person that has not executed the Commitment Letter as of the date hereof but becomes a party thereto (or to any definitive documentation for any Committed Financing (including any replacement financing and/or any financing contemplated by an Alternate Financing)) after the date hereof in accordance with the terms thereof and this Section 5.16, (D) references to the “Committed Financing” shall include the any Alternate Financing or replacement financing contemplated by any Alternative Financing this Section 5.16(f) then in effect and references to “Debt Commitment Letter”, “Debt (E) Fee Letters”, “Debt Financing Documents”, “Debt Financing Entities”, “Debt Financing Sources”, or “Financing” Letters shall include the documents (or commitments or financing sources, as applicable) any fee letter entered into in connection with any Alternative Alternate Financing to and any replacement financing contemplated by Section 5.16(f).
(g) From and after the extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions date of this Agreement to the same 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 and through the Alternative Financing in excess earlier of those contemplated by the Debt Commitment Letter as in effect on Closing and the date hereof (including on which this Agreement is terminated in accordance with Article VII, 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 AgreementCompany shall, including their obligations to consummate the Offer and the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt Company shall cause each of financing.its Subsidiaries and use reasonable best efforts
Appears in 2 contracts
Sources: Merger Agreement (Roku, Inc), Agreement and Plan of Merger (Fox Corp)
Financing. (a) 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 The Purchaser shall use reasonable best efforts to take, or cause to be taken, all actionsappropriate action, and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisableadvisable 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 obtain the Debt Financing and to consummate the Debt Financing as soon as practicable after the date of this Agreement and, in any event, on or prior to the Closing Date. Such actions shall includeon the terms and subject only to the conditions contained in the Equity Financing Commitment and the Loan Financing Documentation, but not be limited to, using reasonable best efforts to: including (i) comply maintaining (x) the Equity Financing Commitment and negotiating and executing definitive agreements with respect thereto on the terms and maintain in effect conditions contained therein, which terms and conditions shall not expand upon the Debt Commitment Letter (subject conditions to any amendment, supplement, replacement, substitution, termination Closing or other modification or waiver that is not prohibited by clause contingencies to the funding, and (dy) belowthe Loan Financing Documentation (the “Financing Agreements”); (ii) satisfy, or obtain a waiver thereof, using reasonable best efforts to satisfy on a timely basis all conditions in the Equity Financing Conditions to Commitment and the extent Loan Financing Documentation that are within the Purchaser’s control of Parent to be satisfied and its Affiliatesusing reasonable best efforts to cause the financial institutions providing the Loan Financing to fund the Loan Financing; (iii) negotiate, execute and deliver Debt fully enforcing its rights under the Equity 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 drawing upon and consummating the event that Loan Financing, if available to be drawn upon and consummated. The Purchaser shall provide Sellers with a copy of the Offer Conditions have been satisfied or waived orFinancing Agreements as soon as practicable, upon funding would be satisfiedbut no later than two (2) business days, 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)after their execution.
(b) From The Purchaser shall not agree to or permit any material amendment, supplement or other modification of, or waive any of its rights under, the date of this Agreement until Equity Financing Commitment or the earlier Financing Agreements without the Sellers’ prior written consent, not to be unreasonably withheld, except that the Purchaser may amend, supplement or otherwise modify any of the Effective Time foregoing if such amendment, supplement or other modification would not impair or delay the funding of the Loan Financing or the termination of this Agreement in accordance with Article IX, Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligationClosing.
(c) In the event all or If any portion of the Debt Loan Financing becomes unavailable on the terms and conditions contemplated by contained in the Debt Commitment Letter (including Loan Financing Documentation, 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 Section 8.1 and Annex 1), then Parent and its Affiliates Purchaser shall (i) promptly notify the Company thereof Sellers, and the reasons therefor, (ii) Purchaser shall use its commercially 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amountobtain, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 commitments on terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce will enable the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions contemplated by this Agreement, including the Offer and the Merger, (D) materially adversely affect Parent’s ability Purchaser to consummate the transactions contemplated by this AgreementAgreement 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, including supplements, other modifications or agreements pursuant to which any amended, supplemented, modified or replacement commitments shall provide the Offer and the Merger or (E) materially adversely impact the ability of Parent or Purchaser with any of its Affiliates’ to enforce their respective rights against the Debt Financing Sources or any portion 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 Purchaser may redact from any such copies the fee amounts and pricing information payable to their Financing sources.
(d) Each of the CompanySellers shall, amendand shall cause the Company and its Subsidiaries to, modifyand shall use its commercially reasonable efforts to cause its and the Company and its Subsidiaries independent accountants, supplementlegal counsel and other advisors to, restate, assign, substitute provide such reasonable cooperation in connection with the arrangement of the Loan Financing as may be reasonably requested by the Purchaser or replace the Debt Commitment Lettertheir Financing sources, including (1i) to add and appoint additional arrangers, bookrunners, underwriters, agents, lenders and similar Debt Financing Entities that have not executed reasonably facilitating 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 pledging 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) Shares in connection with any Alternative Financing to the extent permitted by this Section 7.18Loan Financing, and such Alternative Financing (ii) using commercially reasonable efforts to obtain accountants’ “comfort letters”, accountants’ consent letters, legal opinions, and other customary documentation as reasonably requested by the Purchaser; provided that none of the Sellers nor any of their Affiliates shall be required to comply with the provisions of this Agreement to the same 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 commitment or other fee or incur any other liability in connection with the Financing.
(e) The 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 interest rates applicable of its Affiliates to provide the Alternative Loan Financing in excess of those contemplated by or the Backstop Debt Commitment Letter as in effect on Financing themselves if such third party sources fail to provide the date hereof (including Loan Financing or the market flex provisions (if any)) Backstop Debt Financing or agree to any term (including any market flex term (if any)) less favorable (taken as a whole) 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 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 arrange 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 financingLoan Financing.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Tops Markets Ii Corp), Purchase and Sale Agreement (Tops Markets Ii Corp)
Financing. (a) 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 use reasonable best efforts efforts, and shall cause each of its Subsidiaries (including New Wildlife) to use reasonable best efforts, to take, or cause to be taken, all appropriate actions, and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisableadvisable to obtain funds sufficient to fund, together with all other available sources of funding to arrange Parent and obtain New Wildlife, the Debt Financing and to consummate the Debt Financing Amounts on or prior to the Closing Datedate on which the Mergers are required to be consummated pursuant to the terms hereof. Such actions In furtherance and not in limitation of the foregoing, Parent shall include, but not be limited to, using use reasonable best efforts to: efforts, and shall cause each of its Subsidiaries (iincluding New Wildlife) comply with to use reasonable best efforts, to take, or cause to be taken, all appropriate actions and maintain do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the proceeds of the Financing on the terms and subject only to the conditions (including any “flex” provisions set forth in effect the Redacted Fee Letter) described in 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 but in any event prior to the extent within date on which the control of Parent and its Affiliates; (iii) negotiate, execute and deliver Debt Financing Documents Mergers are required to be consummated pursuant to the extent required terms hereof, including by (i) subject 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 fundsSection 5.22(d), which shall reflect maintaining in effect and complying with the Debt Commitment Letter, (ii) negotiating and entering into definitive agreements with respect to the Financing (the “Definitive Agreements”) on the terms and subject only to conditions contained in the Debt Commitment Letter (including including, as necessary, any “market flex” provisions set forth in the Redacted Fee Letter) and without any Prohibited Modification, (iii) satisfying on a timely basis all conditions in the Debt Commitment Letter and the Definitive Agreements that are within the control of Parent and New Wildlife and complying with its obligations thereunder (or, if anydeemed necessary or advisable by Parent or New Wildlife, seek the waiver of conditions applicable to New Wildlife contained in such Debt Commitment Letter or such Definitive Agreements), (iv) related theretosubject to Section 5.22(d), consummating the Financing at or prior to the Closing Date, (v) [reserved], (vi) accepting (and complying with) to the fullest extent any and all “flex” provisions contemplated by the Debt Commitment Letter and the Financing to the extent that such “flex” provisions are exercised in accordance with the terms thereof, and (vii) complying with its covenants and other obligations under the Debt Commitment Letter and the Definitive Agreements. Subject to Section 5.22(d), Parent and New Wildlife shall not, and Parent and New Wildlife shall not permit any of their respective controlled Affiliates to, (x) breach any provision in the Debt Commitment Letter and/or the Definitive Agreements that would result in a failure of any condition to funding on the Closing Date contained in the Debt Commitment Letter and/or the Definitive Agreements to be satisfied or on (y) take any action that would directly result in the termination of the Debt Commitment Letter.
(b) Neither Parent nor any of its Subsidiaries (including New Wildlife) shall, without the prior written consent of the Company: (i) 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 (it being understood that the exercise of any “flex” provisions contained in the Redacted Fee Letter shall not be deemed an amendment, replacement, supplement, modification or waiver) if such amendment, replacement, supplement, modification or waiver could be reasonably likely to (A) add new (or adversely modify any existing) conditions to the availability or consummation of all or any portion of the Financing, (B) reduce (or could have the effect of reducing) the aggregate principal amount of any portion of the Financing (including by increasing the amount of fees to be paid or original issue discount) to an amount less than, together with all other terms acceptable available sources of funding to Parent and New Wildlife, the Financing Amounts, (C) subject to Section 5.22(d), adversely affect the ability of Parent and New Wildlife to enforce their respective rights against other parties to the Debt Commitment Letter or the Definitive Agreements as so amended, replaced, supplemented or otherwise modified, or (D) expand, amend or modify any provision of the Debt Commitment Letter in a manner that would could otherwise reasonably be expected to prevent, impede or delay the consummation of the Mergers and the Contemplated Transactions (the effects described in clauses (A) through (D), collectively, the “Prohibited Modifications”); or (ii) subject to Section 5.22(d), terminate the Debt Commitment Letter or any Definitive Agreement. Parent shall reasonably promptly (and in any event, within three (3) Business Days) deliver to the Company true and complete copies of any such amendment, replacement, supplement, termination, modification, consent or waiver to or under the Debt Commitment Letter or any Definitive Agreement reasonably promptly upon the execution thereof.
(c) In the event that any portion of the Financing becomes unavailable, regardless of the reason therefor, Parent shall (i) reasonably promptly (and in any event, within three (3) Business Days) notify the Company in writing of such unavailability and the reason therefor and (ii) use reasonable best efforts, and cause each of its Subsidiaries (including New Wildlife) to use their reasonable best efforts, to arrange and obtain, as reasonably promptly as practicable following the occurrence of such event, alternative financing from the same or alternative sources (the “Alternative Financing”) in an amount sufficient, when taken together with the available portion of the Financing and all other available sources of funding to Parent and New Wildlife to pay the Financing Amounts and which does not constitute an Adverse Effect on include any Prohibited Modifications or conditions to the consummation of such Alternative Financing as compared that are more onerous to those Parent and New Wildlife than the conditions set forth in the Debt Commitment Letter delivered as of the date of this Agreement (for the avoidance of doubt, any Alternative Financing in the form of equity shall be subject to the prior written consent of the Company in all respects (which may be granted or withheld in the Company’s sole and absolute discretion). Parent shall keep the Company reasonably informed on a current basis of the status of its efforts to consummate the Financing, including any Alternative Financing. Parent shall promptly (and in any event, within three (3) Business Days) deliver to the Company on the date hereof; true and (iv) in the event that the Offer Conditions have been satisfied complete copies of all contracts or waived or, upon funding would be satisfied, consummate the Debt Financing agreements (including any Redacted Fee Letter related thereto) pursuant to which any such alternative source shall have committed to provide any portion of the Financing after execution and delivery thereof.
(d) Notwithstanding anything contained herein to the contrary, it is understood and agreed that Parent or New Wildlife may elect, by instructing providing written notice to the Debt Financing Sources to fund the Debt Financing Company in accordance with the definition of Alternative Debt Commitment LetterFinancing Event (such election, and enforcing Parent’s rights under an “Alternative Debt Financing Election”), to replace or supplement all or any portion of the Debt Commitment Letter and the definitive agreements relating Financing with alternative debt financing commitments (“Alternative Debt Commitments”) from other financing sources that provide financing for purposes of financing the Contemplated Transactions, so long as: (1) any commitments of the Debt Financing Sources under the Debt Commitment Letter delivered on or before the date hereof are only terminated or reduced simultaneously with, or following, the entry into such Alternative Debt Commitments and the commitments under such Alternative Debt Commitments are equal to or greater than the corresponding amount of commitments terminated or reduced under the Debt Commitment Letter delivered with the signing of this Agreement and (2) the replacement or supplement with the Alternative Debt Commitments (A) would not reasonably be expected (x) to adversely affect the ability of New Wildlife to timely consummate the Contemplated Transactions or (y) to delay the consummation of the Contemplated Transactions beyond the date on which Closing would otherwise be required to occur hereunder, (B) does not include any Prohibited Modifications or otherwise amend, supplement, modify or waive the conditions to the Financing in a manner adverse to the Company, in each case, without the prior written consent of the Company, and (C) would not reasonably be expected to delay the Closing or make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur. Parent shall promptly (and in any event, within three (3) Business Days) deliver correct and complete copies of all contracts or agreements (including any Redacted Fee Letter related thereto) with respect to the Alternative Debt Financing)Commitments to the Company after execution and delivery thereof, together with correct and complete copies of any Redacted Fee Letter relating thereto. Notwithstanding anything herein to the contrary, (1) Parent and New Wildlife will use reasonable best efforts, and cause each of their respective Subsidiaries to use their respective reasonable best efforts, not to materially increase the burden of cooperation imposed on the Company and its Subsidiaries from additional requests for information and documents made by the sources of such Alternative Debt Commitments as compared to the information and document requests of the type made by (or on behalf of) the Debt Financing Sources in respect of the Debt Commitment Letter delivered on the date hereof, and (2) in no event shall the satisfaction of any cooperation covenants with respect to the Alternative Debt Commitments by the Company, its subsidiaries or any of their respective Affiliates be a condition to any of Parent’s or New Wildlife’s obligations under this Agreement to the extent any requests in connection therewith are not requested by Parent or New Wildlife in writing at least three (3) Business Days prior to the Closing Date.
(be) 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 provide the Company with reasonably prompt written notice (and, in any event, within three (3) Business Days) (i) of any actual or threatened (in writing) material breach, repudiation default (or threatened material any event that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any breach or default), cancellation, termination or repudiation by any party to the Debt Commitment Letter or any Definitive Agreement and a copy of which Parent any written notice or its Affiliates becomes aware; provided other written communication from any Debt Financing Source or other financing source with respect to any actual or threatened breach, default, cancellation, termination or repudiation by any party to the Debt Commitment Letter or any Definitive Agreement of any provision thereof, (ii) of the occurrence of an event or development that none could reasonably be expected to have an adverse impact on the ability of Parent or Merger Sub shall be required New Wildlife to disclose or provide any such information, the disclosure of which, in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event obtain all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter in an amount sufficient, when taken together with all other available sources of funding to Parent and New Wildlife, to pay the Financing Amounts, (including the flex provisions (if any)iii) (other than as a result of the Company’s breach receipt by Parent or New Wildlife of any provision notice or other communication from any Person with respect to any material dispute or disagreement between or among parties to the Debt Commitment Letter or the Definitive Agreements with respect to the obligation to fund the Financing or the amount of the Financing to be funded at the Closing (but excluding ordinary course negotiations), and (iv) if for any reason Parent believes in good faith that (x) there is (or there is likely to be) a material dispute or disagreement between or among parties to the Debt Commitment Letter or the definitive documents related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be funded at the Closing (but excluding ordinary course negotiations) or (y) there is a reasonable likelihood that the Financing will not be available for any reason on the terms, in the manner or from the sources contemplated by the Debt Commitment Letter or any Definitive Agreements, in each case, in an amount sufficient, when taken together with the available portion of the Financing and all other available sources of funding to Parent and New Wildlife, to pay the Financing Amounts. As soon as reasonably practicable, Parent shall provide any information reasonably requested by the Company relating to any circumstance referred to in the immediately preceding sentence.
(f) Notwithstanding the foregoing or anything else in this Agreement to the contrary, compliance by Parent with this Section 5.22 shall not relieve Parent of its obligations to consummate the Contemplated Transactions whether or failure not the Financing or any Alternative Financing is available. Parent acknowledges and agrees that the receipt or availability of any debt, equity or other financing to satisfy it or New Wildlife is not a condition to the consummation of the Contemplated Transactions, and that if no such financing is obtained, Parent and New Wildlife will continue to be obligated, subject only to the satisfaction or waiver of the conditions set forth in Section 8.1 and Annex 1)6, then Parent and its Affiliates shall (i) promptly notify to consummate the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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 DateContemplated Transactions.
(dg) From To the date of this Agreement until the earlier of the Effective Time extent Parent or the termination of this Agreement in accordance with Article IXNew Wildlife obtains Alternative Financing, 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 makes an Alternative 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 Election pursuant to the funding of the Debt Financing, (B) reduce the amount of the an Alternative Debt Financing Event 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 handamends, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) and other sources of immediately available funds)replaces, (C) prevent supplements, terminates, modifies 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 transactions 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 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 waives any of the other parties Financing, in each case pursuant to this Section 5.22 and without any Prohibited Modification, references to the “Financing,” “Debt Financing Sources,” and “Debt Commitment Letters Letter,” “Definitive Agreements” (and other like terms in this Agreement) shall be deemed to refer to such Alternative Financing or Alternative Debt Commitments, the definitive commitments thereunder and the agreements with respect thereto or the Financing as so amended, restated, replaced, supplemented, terminated, modified or waived (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 than with respect to such appointments, (2) modify pricing, (3) terminate or reduce any commitments under the Debt Financing representations in order to obtain alternative sources of debt financing in lieu of all or a portion this Agreement made by Parent that are made solely as of the Debt Financing and/or (4) increase the aggregate amount of the Debt Financingdate hereof), 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 Financingrespectively.” 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 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 2 contracts
Sources: Arrangement Agreement and Plan of Merger (Rome Wildlife, Inc.), Arrangement Agreement and Plan of Merger (RE/MAX Holdings, Inc.)
Financing. (a) From the date Parent shall, and shall cause each of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXits Subsidiaries to, Parent and use its Affiliates shall use reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisable, 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 Debt 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 consummate be entered into pursuant thereto, in each case, that are within the Debt control of Parent, (iii) negotiate and enter into definitive agreements with respect to the 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. Such actions shall include, but not be limited to, using reasonable best efforts to: (iiv) comply with and maintain in effect enforce its rights under 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; Papers and (ivv) in the event that all conditions to funding and availability of the Offer Conditions Financing contained in the Commitment Papers have been satisfied or waived or, upon funding would be satisfiedwaived, consummate the Debt Financing (including contemplated 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) Papers. In the event all or any portion of the Debt Financing contemplated by the Commitment Papers becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter (including any “flex” provisions) contemplated in the flex provisions 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 (if any)A) (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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof in writing and the reasons therefor(B) Parent shall, (ii) and shall cause each of its Subsidiaries to, use its 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amountobtain, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate principal amount of such alternative financing to be funded on the Closing Date or impose additional conditions precedent to the funding of for any 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, 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 portion 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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)) an amount not less favorable (taken as a whole) to Parent than such term contained in the Debt Commitment Letter as in effect on the date hereof unavailable and necessary funds and which (including the market flex provisions (if any)). Parent 1) does not involve terms 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.conditions that,
Appears in 2 contracts
Sources: Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Cleveland-Cliffs Inc.)
Financing. (a) From the date Each 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 Acquisition Sub shall use its reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisable, advisable to arrange and obtain the Debt proceeds of the Equity Financing and to consummate the Debt Financing on or prior to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: (i) comply with terms and maintain conditions described in effect the Debt Equity 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, as applicable (as each may be amended in accordance with the terms below), including using reasonable best efforts to (i) enter into definitive agreements with respect thereto on the terms and enforcing Parent’s rights under conditions contained therein and (ii) to satisfy on a timely basis (taking into account the expected timing of the Closing) all conditions, and otherwise comply with all terms, applicable to Parent and Acquisition Sub in such definitive agreements within their control. Parent and Acquisition Sub may not 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 Equity Commitment Letter without the consent of the Company. Parent and Acquisition Sub may not 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 Debt Commitment Letter and or the definitive agreements relating to the Debt FinancingFinancing without the consent of the Company if such amendments, supplement, other modification or waivers would or could reasonably be expected to (w) reduce the aggregate amount of the Debt Financing below the amount required to repay or refinance the debt contemplated in this Agreement or the Debt Commitment Letter, (x) impose new or additional conditions to the receipt of the Debt Financing or amend or otherwise modify the existing conditions to the receipt of the Debt Financing so as to adversely impact the ability of Parent or Acquisition Sub to timely consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby, (y) prevent or materially delay the consummation of the transactions contemplated by this Agreement or (z) adversely impact the ability of Parent or Acquisition Sub to enforce its rights against the other parties to the Debt Commitment Letter (provided, that, for the avoidance of doubt, Parent and Acquisition Sub may replace or amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities).
(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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by in 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 Section 8.1 and Annex 1)Letter, then Parent and its Affiliates Acquisition Sub shall (i) promptly notify the Company thereof and the reasons therefor, (ii) use their respective reasonable best efforts to arrange and obtain alternative debt 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 sources in 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, that, amount sufficient when taken together combined with the portion of the Debt Financing that remains available and any cash on hand, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) hand and other sources of immediately available funds, is at least equal financing arrangements to consummate the Required Amount, transactions contemplated by this Agreement as promptly as practicable following the occurrence of such event; provided, however, that Parent and Acquisition Sub shall not be required to seek or accept any such alternate debt financing if the terms or conditions thereof are less favorable to Parent (iiiin the reasonable judgment of Parent) use reasonable best efforts than the Debt Financing to obtainbe replaced, including with respect to economic terms and when obtained, provide conditions. Parent and Acquisition Sub shall keep the Company with informed on a true reasonably current basis in reasonable detail of the all material activity concerning the status of the Debt Financing or any alternative debt financing and complete copy of, a new financing commitment that provides concurrently provide final copies of the material definitive documents for such alternative financing; the Debt 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate principal amount of such alternative financing to be funded on the Closing Date or impose additional conditions precedent to the funding lenders. Parent and Acquisition Sub shall each give the Company prompt notice of such alternative financing on the Closing Date.
(di) From the date of this Agreement until the earlier any material breach by any party of the Effective Time or the termination of this Agreement in accordance with Article IXEquity Commitment Letter, 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 definitive document related to the Equity Financing or Debt Financing Document if such amendmentof which Parent or Acquisition Sub becomes aware or (ii) the receipt by it of any written notice with respect to any material breach, modificationdefault, supplement, restatement, assignment, substitution termination or replacement would (A) impose additional conditions precedent or expand upon the conditions precedent repudiation by any party to the funding applicable the Equity Commitment Letter, the Debt Commitment Letter or any definitive document related to the Equity Financing or Debt Financing, as applicable, of any material provisions of the Equity Commitment Letter, Debt Commitment Letter or any definitive document related to the Equity Financing. As soon as reasonably practicable, Parent shall provide any information reasonably requested by the Company relating to any circumstance referred to in the immediately preceding sentence. Notwithstanding anything in this Section 5.18 or in any other provision of this Agreement, Parent and Acquisition Sub acknowledge and agree that the obtaining 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 or (E) materially adversely impact the ability of Parent or any of its Affiliates’ alternative debt financing, is not a condition 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, 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 FinancingClosing.” 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 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 2 contracts
Sources: Amalgamation Agreement, Agreement and Plan of Amalgamation (SeaCube Container Leasing Ltd.)
Financing. (a) From the date of this Agreement until Prior to the earlier of the Effective Time or Closing Date and the termination of this Agreement in accordance with Article IXSection 8.1, Parent each of Parent, Guarantor and its Merger Sub shall use, and shall cause their respective Affiliates shall use to use, reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things necessary, reasonably necessary proper or advisable, advisable to arrange and obtain the Debt Financing and to consummate the Debt Equity Financing on or prior to the Closing Date. Such actions shall includeDate and as provided in this Agreement, but not be limited to, using reasonable best efforts to: including (i) comply negotiating definitive agreements with and maintain in effect respect to 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, Financing 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 and conditions described in the Financing Letters and the Debt Commitment Letter Fee Letters (including any “market flex” provisions (if any) related thereto) or on such other terms acceptable to Parent that would Guarantor, so long as such terms do not constitute an Adverse Effect on Financing as compared to those set forth a Prohibited Condition), (ii) maintaining in effect each of the Debt Commitment Letter delivered Financing Documents until the Transactions are consummated, (iii) satisfying, or causing to be satisfied on or prior to the Company on Closing Date, all conditions to the date hereof; closing of, and funding under, the Debt Financing Documents applicable to Parent, Guarantor, Merger Sub or any of their respective Affiliates that are within its control, (iv) in the event that the Offer Conditions have been conditions set forth in Section 7.1 and 7.2 are satisfied or waived orwaived, drawing upon funding would be satisfied, consummate and consummating the Debt Financing and Equity Financing at or prior to the Closing, and (including by instructing v) enforcing its rights under the Debt Financing Sources Documents. Guarantor shall (x) cause there to fund be sufficient availability under the Debt Financing Guarantor Credit Facility (after giving effect to the amendment thereto or refinancing thereof provided for in accordance with the Debt Commitment Letter, and enforcing Parent’s rights ) on the Closing Date to fund the amount of the Debt Financing required to be funded under the Guarantor Credit Facility (after giving effect to the amendment thereto or refinancing thereof provided for in the Debt Commitment Letter Letter) on the Closing Date in order for the representation in Section 5.9(a) to be true on the Closing Date, and (y) refrain from borrowing or other utilization of the definitive agreements relating to Guarantor Credit Facility or the incurrence of any other indebtedness, if the funding of the amount of the Debt Financing)Financing required to be funded on the Closing Date in order for the representation in Section 5.9(a) to be true on the Closing Date would cause Guarantor to exceed the maximum dollar amount allowed under the Senior Notes Indenture.
(b) From the date If Parent, Guarantor or any 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or its their respective Affiliates becomes aware; provided aware 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or any portion of the Debt Financing becomes has become unavailable on the terms and conditions contemplated by in 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 Section 8.1 and Annex 1)Letter, then Parent and its Affiliates shall then, (i) Parent shall promptly so notify the Company thereof in writing, and the reasons therefor, (ii) use each of Parent, Guarantor and Merger Sub shall use, and shall cause their respective Affiliates to use, reasonable best efforts to arrange to obtain alternative debt 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such eventevent on terms and conditions not less favorable in any material respect, in the aggregate, to Parent, Guarantor, Merger Sub and their respective Affiliates than those contained in the Debt Commitment Letter and in an amount, together with the aggregate proceeds of the Equity Financing and all other sources of cash available to Parent on the Closing Date, sufficient for Parent, Guarantor, Merger Sub and their respective Affiliates to pay the Financing Uses on the terms and conditions contemplated hereby (iii) use the “Alternative Financing”); provided, that in no event shall the terms of any Alternative Financing prevent, delay or materially impede or impair the ability of Parent, Guarantor, Merger Sub or any of their respective Affiliates to consummate the Transactions in accordance with the terms of this Agreement; provided, further, that, notwithstanding anything herein to the contrary, in no event shall reasonable best efforts be construed to obtainrequire that Parent, Guarantor, Merger Sub or their respective Affiliates to (A) pay any fees or original issue discount in excess of those contemplated by the Debt Commitment Letter and/or the Debt Fee Letters, in each case, as in effect of the date hereof or (B) agree to pricing or other economic terms that are less favorable (taken as a whole) than those contemplated by the Debt Commitment Letter and/or the Debt Fee Letters, in each case, as in effect of the date hereof (in each case of clauses (A) and when obtained(B), provide assuming the full exercise of any “market flex” provisions in the Debt Fee Letters). Parent and Guarantor shall deliver to the Company with a true and complete copy of, a new financing commitment that provides for such copies of all Contracts or other arrangements pursuant to which any alternative financingsources have committed to provide the Alternative Financing (the “Alternative Financing Documents”) as soon as reasonably practicable after execution thereof; provided that any provisions set forth in such new financing commitment relating to fees, pricing termsterms and pricing caps, “market flex” provisions (if any) and other terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate principal amount of such alternative financing to be funded on the Closing Date or impose additional a Prohibited Condition. In the event Alternative Financing is obtained, any reference in this Agreement to (x) the “Debt Financing” shall be deemed to include the Alternative Financing, (y) the “Debt Financing Documents” shall be deemed to include the Alternative Financing Documents and (z) “Debt Financing Sources” shall be deemed to include the financing sources providing the Alternative Financing. In the event any portion of the Debt Financing becomes unavailable on the terms and conditions precedent contemplated in the Debt Financing Documents and to the funding of extent such alternative financing on portion is not replaced by the Closing DateAlternative Financing to the extent required by the foregoing clause (ii), Parent shall promptly notify the Company.
(dc) From the date of this Agreement until Prior to the earlier of the Effective Time or Closing Date and the termination of this Agreement in accordance with Article IXSection 8.1, neither Parent, Guarantor, Merger Sub nor any of their respective Affiliates shall (i) agree to or permit any amendments or modifications to any Debt Financing Document without the prior written consent of the CompanyCompany if such amendments or modifications would be a Prohibited Condition or (ii) so long as this Agreement remains in effect, Parent and its Affiliates shall not amend, modify, supplement, restate, assign, substitute or replace terminate the Debt Commitment Letter Letter. Without limiting the generality of the foregoing, neither Parent, Guarantor, Merger Sub nor any of their respective Affiliates shall release or consent to the termination of the obligations of the other parties to any Debt Financing Document.
(d) Parent shall, prior to the earlier of the Closing and the termination of this Agreement in accordance with Section 8.1, (i) give the Company prompt written notice (A) upon becoming aware of any material breach of any provision of, or termination by any party to 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 any other definitive agreement with respect to the funding of the Debt Financing, (B) reduce upon the amount receipt of any written notice or other written communication from any Debt Financing Source with respect to any threatened breach or threatened termination in writing by any Debt Financing Source with respect to the Debt Financing, and (C) if Parent at any time believes that Guarantor will not be able to obtain all or any portion of the Debt Financing or Equity Financing on the net cash proceeds available terms, in the manner, or from the sources contemplated by the Debt Financing to an amount that is less than the Required Amount Documents; and (after taking into account any cash on hand, available lines of credit (including under Borrower’s existing revolving credit and securitization facilitiesii) and other sources of immediately available funds), (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 transactions 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 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, 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 otherwise keep the Company informed in reasonable detail on a reasonably current basis of the status of Parent’s, Guarantor’s, Merger Sub’s and their respective Affiliates’ efforts to arrange the Debt Financing. Any alternative, substitute Financing 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 and the extent permitted by this Section 7.18Equity Financing, and such Alternative Financing shall be required to comply with including regarding the provisions appointment of this Agreement to the same extent as additional arrangers for 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 2 contracts
Sources: Merger Agreement (SpartanNash Co), Merger Agreement (SpartanNash Co)
Financing. (a) From Prior to the date of this Agreement until Closing, Parent shall provide, and shall cause its Affiliates to provide, and shall use its commercially reasonable efforts to cause Parent’s and its Affiliates’ Representatives to provide, all reasonable cooperation in connection with the earlier arrangement of the Effective Time or the termination of this Agreement Financing as may be reasonably requested by Buyer and that is customary in accordance connection with Article IX, Parent and its Affiliates shall use reasonable best Buyer’s 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 Debt Financing on or prior to the Closing Date. Such actions shall includeFinancing, but not be limited to, using reasonable best efforts to: including (i) comply reasonable cooperation in connection 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)marketing efforts reasonably necessary for the Financing; (ii) satisfyparticipation by senior management of the Transferred Companies in, and assistance with, the preparation of a reasonable number of rating agency presentations and meetings with rating agencies; (iii) using commercially reasonable efforts to deliver to Buyer and its Financing Sources the Financing Information as promptly as practicable after the date hereof; (iv) reasonable participation by senior management of the Transferred Companies in the negotiation of the documents necessary in connection with the Financing; (v) taking such other customary actions of ancillary assistance as are reasonably requested by Buyer or obtain a waiver thereof, its Financing Sources to facilitate the satisfaction on a timely basis all Financing Conditions of Buyer’s conditions precedent to obtaining the extent within the control of Parent and its AffiliatesFinancing; (iiivi) negotiateusing its commercially reasonable efforts to cause its independent auditors to, execute cooperate with the Financing; and deliver Debt Financing Documents (vii) if the Closing has not occurred by January 1, 2014, engaging an Auditor and causing such Auditor to commence preparation of the extent audited consolidated balance sheets and related statements of income and cash flows of the Business for the year ended December 31, 2013; provided, however, that until the Closing no Transferred Company shall (A) be required to pay any commitment or other similar fee or (B) incur any other liability or obligation related to the Required Amount (after taking into account Financing, and no obligation of any cash on handTransferred Company under any Financing Document shall be effective prior to the consummation of the Closing; and provided, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) and other sources of immediately available funds)further, which that the requested cooperation hereunder shall reflect the terms contained not require Parent, any Seller or any Transferred Company to take any action that would conflict with Legal Requirements or its Governing Documents, or result in the Debt Commitment Letter violation or breach of, or default under, any Contract to which it is a party or the documents necessary in connection with the Financing. The Transferred Companies will use commercially reasonable efforts to provide to Buyer and its Financing Sources such specific supplementary information with respect to the Transferred Companies or the Business (including any “market flex” provisions (if any) related thereto) or on such other terms acceptable subject to Parent that would not constitute an Adverse Effect on Financing as compared to those the limitations set forth in the Debt Commitment Letter delivered prior sentence) as may be necessary so that the Financing Information and the Marketing Material (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 extent relating to the Debt Financing)Transferred Companies) is complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(b) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement Buyer shall, and shall cause its Affiliates to, (i) promptly upon request by Parent, reimburse Parent for all reasonable and documented out-of-pocket costs and expenses (excluding internal costs) actually incurred by Parent in accordance connection with Article IX, cooperation provided for in Section 4.22(a) and (ii) indemnify and hold harmless Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 the Transferred Companies) and their respective directors, officers, employees, and agents from and against any and all Losses suffered or incurred by them in connection with the Financing and any information utilized in connection therewith (other than information provided by Parent). Notwithstanding the immediately preceding sentence, Parent shall pay for of its all costs and expenses (including fees of the Company’s breach Auditor) related to the preparation and delivery of any provision audited consolidated balance sheets and related statements of this Agreement income and cash flows of the Business for the year ended December 31, 2012 (such audited Financial Information being referred to as the “2012 Carve-Out Financial Statements”). All non-public or failure to satisfy otherwise confidential information regarding the conditions set forth in Section 8.1 and Annex 1)Transferred Companies obtained by Buyer, then Parent and its Affiliates or Buyer’s Representatives pursuant to this Section 4.22 shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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 kept confidential in accordance with Article IX, without Section 4.1(b) and the prior written consent terms of the CompanyConfidentiality Agreement; provided, Parent and its Affiliates shall not amendhowever, modify, supplement, restate, assign, substitute that notwithstanding Section 4.1(b) 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 terms of the Debt FinancingConfidentiality Agreement, (B) reduce the amount of the Debt Financing or the net cash proceeds available from the Debt Financing upon notice to an amount that is less than the Required Amount (after taking into account any cash on handParent, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) and other Buyer may provide such information to potential sources of immediately available funds), (C) prevent or materially delay or make materially less likely the funding of the Debt Financing (or the satisfaction capital and to rating agencies and prospective lenders and investors during syndication of the Financing Conditions) subject to customary confidentiality arrangements with such Persons regarding such information and on the Closing Date or materially impair, delay or prevent condition that such information is used solely for the consummation purpose of effecting the transactions 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 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, 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 2 contracts
Sources: Stock Purchase Agreement (Rockwood Holdings, Inc.), Stock Purchase Agreement (Huntsman International LLC)
Financing. (a) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXParent, Parent Merger Sub I and its Affiliates 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, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisable, advisable to arrange and obtain the Debt Financing and to consummate proceeds of the Debt Financing on or prior to the Closing Date. Such actions shall includeterms and conditions set forth in the Commitment Letter (including the market flex provisions set forth in any Fee Letter) as promptly as practicable after the date hereof, but not be limited to, including using reasonable best efforts to: to (i) comply with and 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 (subject 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 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, be waived on a timely basis all Financing Conditions conditions applicable to the extent within the control of Parent Parent, Merger Sub I and its Affiliates; (iii) negotiateMerger Sub II, execute their Representatives 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 their Affiliate set forth in the Debt Commitment Letter delivered 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 Company on the date hereofDebt Financing; and (ivvi) in upon the event that the Offer Conditions have been satisfied satisfaction or waived or, upon funding would be satisfiedwaiver of such conditions, 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 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 date 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 until that is a breach of, or would result in termination of, the earlier Commitment Letter. Parent shall keep the Company reasonably informed of the Effective Time 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 termination Commitment Letter and all executed and substantially final draft Debt Financing Documents. Without limiting the generality of this Agreement in accordance with Article IXthe foregoing, Parent and its Affiliates shall give the Company prompt notice notice: (i) of any 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 breach or default) by any party to the Commitment Letter or any Debt Financing Documents of any provision of such Commitment Letter or Debt Financing Documents; (ii) any termination, cancellation or repudiation by any party to any of the Commitment Letter or Debt Financing Documents of which Parent becomes aware; (iii) of the receipt by Parent, Merger Sub I or Merger Sub II or any of their Affiliates or Representatives of any notice or other communication from any Person with respect to any (A) breach, repudiation or threatened material breach default, termination or repudiation by any party to the Debt Commitment Letter or any Debt Financing Documents of which Parent any provision thereof or its Affiliates becomes aware(B) dispute or disagreement between or among any parties to the Commitment Letter or any Debt Financing Documents with respect to the Debt Financing; provided that none of Parent and (iv) if for any reason Parent, Merger Sub I or Merger Sub shall 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 required to disclose or provide available for any such information, reason on the disclosure of whichterms, in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege manner or which would be in violation of from the sources contemplated by the Commitment Letter or any confidentiality obligationDebt Financing Documents.
(c) In the event all or any portion of 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 Debt Commitment Letter for any reason (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 Section 8.1 and Annex 1such event, an “Original Financing Failure”), then Parent and its Affiliates shall (i) promptly notify the Company thereof in writing of the Original Financing Failure and the reasons therefor, (ii) Parent shall use all reasonable best efforts to obtain alternative financing from the same or alternative Debt Financing Entities on terms arrange and conditions, taken as a whole, no less favorable to Parent than the Financing Conditions, not involving any conditions that would 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amountobtain, as promptly as practicable following 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 occurrence of such eventtransactions contemplated by this Agreement and to pay all related fees and expenses (the “Alternate Financing”), and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a obtain one or more new financing commitment that provides for letters with respect to such alternative financingAlternate Financing (collectively, the “New Commitment Letter”) and related fee letters, which shall replace the existing Commitment Letter and any existing Fee Letter; provided that any provisions set forth in 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 financing commitment relating or additional condition or otherwise expand any condition to fees, pricing terms, “market flex” provisions (if any) draw and other terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce 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 such alternative financing to be funded on the Closing Date or impose additional conditions precedent financing) in connection therewith to the funding of such alternative financing on Company. In the Closing Date.
event a New Commitment Letter is obtained, (di) From the date of any reference in this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 mean the financing contemplated by the Commitment Letter as modified pursuant to clause (ii) below, (ii) any Alternative Financing reference in this Agreement to the “Commitment Letter” shall be deemed to mean the New Commitment Letter and any fee letter provided in connection therewith, (iii) any reference in this Agreement to the “Fee Letter” shall be deemed to include any fee or other letter relating to the New Commitment Letter to the extent then in effect, and (iv) any references to “Debt Financing Documents” shall be deemed to mean the definitive agreement with respect to the Debt Financing on the terms and conditions set forth in the New 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 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 2 contracts
Sources: Merger Agreement (Flir Systems Inc), Merger Agreement (Teledyne Technologies Inc)
Financing. (a) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX, Ultimate Parent and its Affiliates shall use reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary or advisable, advisable to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter and to consummate the Debt Financing on or prior to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts tothe following: (i) comply with and maintain maintaining 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)Letter; (ii) satisfyparticipation by senior management of Ultimate Parent in, or obtain a waiver thereofand 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 extent Debt Commitment Letter that are within the control of Parent and its Affiliatescontrol; (iiiiv) negotiatenegotiating, execute executing and deliver delivering 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 that reflect the terms contained in the Debt Commitment Letter (to the extent required to consummate the transactions contemplated hereunder) (including any “market flex” provisions (if any) related thereto) or on such other terms acceptable to Ultimate 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 hereofand its financings sources; and (ivv) in the event that the Offer conditions set forth in Section 6.1 and Section 6.2 and the Financing Conditions have been satisfied or waived or, upon funding funding, would be satisfied, consummate cause the financing providers to fund the full amount of the Debt Financing (including by instructing to the Debt Financing Sources extent the proceeds thereof are needed 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, transactions contemplated hereunder. Ultimate Parent and its Affiliates shall give the Company reasonably prompt notice of any material breach, repudiation or threatened material (in writing) breach or repudiation by any party to the Debt Commitment Letter of which Ultimate Parent or its Affiliates becomes aware; provided that none of . Without limiting Ultimate Parent’s other obligations under this Section 5.15, if a Financing Failure Event occurs, Ultimate Parent or Merger Sub shall be required to disclose or provide any such information, the disclosure of which, in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (iA) promptly notify the Company thereof of such Financing Failure Event and the reasons therefor, (iiB) use commercially reasonable best efforts to obtain alternative financing from the same or alternative Debt Financing Entities financing sources (on terms and conditions, taken as a whole, no not materially less favorable to Ultimate Parent than the Financing Conditions, not involving any conditions that would constitute an Adverse Effect on Financing (as defined belowdetermined in the reasonable judgment of Ultimate Parent, taking into account any “market flex” provisions related to the Debt Commitment Letter) as compared to than those set forth contained in the Debt Commitment Letter delivered to the Company on the date hereofLetter), thatin an amount sufficient, when taken together with other financial resources of Ultimate Parent, Parent and Merger Sub, to pay the portion of aggregate Merger Consideration, Option Payments and RSU Payments pursuant to this Agreement and consummate the Debt Financing that remains available and 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, is at least equal to the Required Amounttransactions contemplated by this Agreement, as promptly as practicable following the occurrence of such event, and (iiiC) use reasonable best efforts to obtain, if and when obtained, provide the Company with a true and complete copy of, of a new financing commitment that provides for such alternative financing; provided that any provisions set forth in such new financing commitment relating . Ultimate Parent shall have the right from time to fees, pricing terms, “market flex” provisions (if any) and other terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend time to any terms that would reasonably be expected to reduce the aggregate 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, without the prior written consent of the Company, Parent and its Affiliates shall not amend, modify, supplement, restate, assign, substitute or replace any of the Debt Commitment Letter or any Debt Financing Document if from the same and/or an alternative Financing Source; provided, that any 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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 mayshall not, without the prior written consent of the CompanyCompany (such consent not to be unreasonably withheld, amend, modify, supplement, restate, assign, substitute conditioned or replace the Debt Commitment Letter, including delayed) (1) add any conditions precedent or other contingencies related 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 funding of the Debt Financing and/or on the Closing Date (4beyond the Financing Conditions) increase that would result in the aggregate amount of the Debt Financing, in each case, so long as conditions to such amendments would not funding being materially less likely to be satisfied or (2) be reasonably expected to result impede or delay in an Adverse Effect on Financing. Upon request any material respect the consummation 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 Merger and the previous paragraph is the “Alternative Financing.” other transactions contemplated by this Agreement. For purposes of this AgreementSection 5.15 and Section 5.16 below, references to “Debt Financing” shall include the financing contemplated by any Alternative 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”, “Debt Fee Letters”, “Debt Financing Documents”, “Debt Financing Entities”, “Debt Financing Sources”, or “Financing” shall include such documents as permitted to be amended, modified, supplemented, restated, assigned, substituted or replaced by this Section 5.15 (including in the documents 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 and the Company’s Subsidiaries on the Closing Date, to consummate the Merger on the terms contemplated by this Agreement, and provided, further, that such reduction shall not (I) add any conditions precedent or commitments other contingencies related to the funding of the Debt Financing on the Closing Date (beyond the Financing Conditions) that would result in the conditions to such funding being materially less likely to be satisfied or financing sources(II) be reasonably expected to impede or delay in any material respect the consummation of the Merger and the other transactions contemplated by this Agreement. For the avoidance of doubt, as applicable) in connection with any Alternative the syndication of the Debt Financing to the extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 and subject to the date hereof (including the market flex provisions (if any)) conditions contained therein shall not be deemed to violate Ultimate Parent’s 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 Parent’s obligations under this Agreement, including their obligations to consummate . Ultimate Parent shall consult with and keep the Offer and Company informed in reasonable detail of the Merger, are not subject to, or conditioned on, status of Ultimate Parent’s or Merger Sub’s receipt of financingefforts to arrange the Debt Financing.
Appears in 2 contracts
Sources: Merger Agreement (St Jude Medical Inc), Merger Agreement (Thoratec Corp)
Financing. (a) 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 use its reasonable best efforts to takeobtain the Financing on the terms and conditions described in the Financing Commitments or terms more favorable to Parent, or cause to be taken, all actions, and use including using its reasonable best efforts (i) to do, or cause to be done, all things reasonably necessary or advisable, to arrange and obtain maintain in effect the Debt Financing Commitments and 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 in such definitive agreements and consummate the Debt Financing on at or prior to the Closing Date. Such actions shall includeClosing, 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 to comply with its obligations under the 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; Commitments 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 enforce its 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, Financing Commitments. Parent and its Affiliates shall give the Company prompt notice upon becoming aware of any material breach, repudiation or threatened material breach or repudiation 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 Financing and provide to the Company copies of all documents related to the Financing (other than any ancillary documents subject to confidentiality agreements). In connection with its obligations under this Section 5.10, Parent shall be permitted, but not obligated, to amend, modify or replace the Debt Commitment Letters with new Financing Commitments, including through co-investment by or financing from one or more other additional parties (the “New Financing Commitments”), provided that Parent shall not permit any replacement of, or amendment or modification to be made to, or any waiver of any material provision or remedy under, the Debt Commitment Letter if such replacement (including through co-investment by or financing from one or more other additional parties), amendment, modification, waiver or remedy reduces the aggregate amount of the Financing below that amount required to consummate the Merger and the other transactions contemplated hereby, adversely amends or expands the conditions to the drawdown of the Financing in any respect that would make such conditions less likely to be satisfied or that would expand the possible circumstances under which Parent such conditions would not be satisfied, that can reasonably be expected to delay the Closing, or its Affiliates becomes awareis adverse to the interests of the Company in any other material respect; provided and provided, further, that none of Parent or Merger Sub nothing in this Section 5.10 shall be required deemed to disclose excuse, waive compliance with or provide modify any such information, of the disclosure of which, obligations set forth in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) Confidentiality Agreement. In the event all that Parent becomes aware of any event or circumstance that makes procurement of any portion of the Debt Financing becomes unavailable on unlikely to occur in the terms and conditions manner or from the sources contemplated by in 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 Section 8.1 and Annex 1)Financing Commitments, then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) shall use its reasonable best efforts to obtain arrange as promptly as practicable, but in no event later than the last day of the Marketing Period, any such portion from alternative financing from the same sources (including through co-investment by one or alternative Debt Financing Entities more other additional parties) on terms and conditions, taken as a whole, conditions no less favorable to Parent than the Financing Conditions, not involving any conditions that would constitute an Adverse Effect on Financing (as defined below) as compared to those set forth in the Debt Commitment Letter delivered or Merger Sub and no more adverse to the Company on the date hereof, that, when taken together with the portion ability of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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. The Company shall provide, and shall use reasonable best efforts to cause its Representatives, including legal and accounting, to provide, all cooperation reasonably requested by Parent in connection with the Offer Financing and the Merger other transactions contemplated by this Agreement (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), including (i) providing reasonably required information relating to the Company and its Subsidiaries to the parties providing the Financing, which shall include all financial statements and financial data for the Company and its Subsidiaries (A) of the type required by Regulation S-X and Regulation S-K under the Securities Act and of the type and form customarily included in private placements under Rule 144A of the Securities Act to consummate any offering of senior or senior subordinated notes of the Company (E) materially adversely impact the ability of Parent or any direct or indirect parent thereof), including replacements thereof prior to any such information going “stale” or otherwise being unusable under applicable Law for such purpose and (B) all financial statements and information reasonably necessary for the satisfaction of its Affiliates’ to enforce their respective rights against the conditions set forth in the Debt Commitment Letter (the “Required Financial Information”), (ii) participating in a reasonable number of meetings, drafting sessions and due diligence sessions in connection with the Financing, (iii) assisting in the preparation of (A) one or more offering documents or confidential information memoranda for any of the Debt Financing Sources (including the execution and delivery of one or more customary representation letters in connection therewith) and (B) materials for rating agency presentations, (iv) reasonably cooperating with the marketing efforts for any of the Debt Financing, including providing assistance in the preparation for, and participating in, reasonable meetings, due diligence sessions and similar presentations to and with, among others, prospective lenders, investors and rating agencies, (v) executing and delivering (or using reasonable best efforts to obtain from advisors), and causing its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from advisors), customary certificates (including a certificate of the chief financial officer of the Company with respect to solvency matters), accounting comfort letters, legal opinions, surveys, title insurance or other parties documents and instruments relating to guarantees, the pledge of collateral and other matters ancillary to the Debt Commitment Letters or Financing as may be reasonably requested by Parent in connection with the definitive agreements with respect thereto (clauses (A) through (E), each an “Adverse Effect on Financing”); provided that Parent may, without Financing and otherwise reasonably facilitating the prior written consent pledge of the Company, amend, modify, supplement, restate, assign, substitute or replace collateral and providing of guarantees contemplated by the Debt Commitment Letter, including and (1vi) delivering timely notice 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 its noteholders of the Company, Parent shall keep the Company informed in reasonable detail of the status of Parent’s efforts intent 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) redeem its outstanding 9-1/8% Senior Subordinated Notes due 2011 in connection with the Financing; provided, however, that no obligation of the Company or any Alternative Financing of its Subsidiaries under any such certificate, document or instrument (other than the representation letter referred to the extent permitted by this Section 7.18, and such Alternative Financing above) shall be required to comply with effective until the provisions Effective Time and none of this Agreement to the same extent as the Debt Financing. Notwithstanding anything to the contrary contained in this Agreement, in no event Company or any of its Subsidiaries shall Parent or its Affiliates be required to pay any fees commitment or other similar fee that is not simultaneously reimbursed or incur any other liability in connection with the Financing prior to the Effective Time. Following the termination of this agreement in accordance with its terms (other than pursuant to Section 7.1(b)(i) at a time when the Company is not eligible to terminate this Agreement pursuant to such section or pursuant to Section 7.1(d)) Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs incurred by the Company or any interest rates applicable of its Subsidiaries in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 5.10, and Parent shall further indemnify and hold harmless the Company, its Subsidiaries and their respective representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of the Financing and any information used in connection therewith (other than information provided in writing by the Company or its Subsidiaries), except to the Alternative Financing in excess extent that such losses, damages, claims, costs or expenses, directly or indirectly, resulted from the willful misconduct 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 financingCompany.
Appears in 2 contracts
Sources: Merger Agreement (Leever Daniel H), Merger Agreement (Court Square Capital Partners II LP)
Financing. (a) From Subject to the date terms and conditions of this Agreement until the earlier Agreement, each of the Effective Time or the termination of this Agreement in accordance with Article IX, Parent and its Affiliates 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 Debt Financing on or prior to the Closing Date. Such actions shall includeterms and conditions described in the Financing Documents, but not be limited to, including using reasonable best efforts to: to (i) comply negotiate and enter into the Debt Financing Agreement with respect to, and maintain on the terms and conditions contained in, the term sheet set out in effect the Debt Commitment Letter (subject 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 any amendmentthe closing of the Debt Financing contained in the Debt Commitment Letter, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below); (ii) satisfymaintain in full force and effect the Financing Documents, or obtain a waiver thereof, (iii) satisfy 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 conditions 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 Agreement, (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 fully enforce its rights under the Debt Commitment Letter Financing Agreement and (v) consummate the definitive agreements relating to Financing at 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) Closing. In 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 in any of the Financing Documents, (x) Parent shall promptly so notify the Company’s breach , and (y) each of any provision of this Agreement or failure to satisfy the conditions set forth in Section 8.1 and Annex 1), then Parent and Merger Sub shall use its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) use reasonable best efforts to arrange and obtain promptly any such portion from alternative debt 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 “Alternative Financing”) in 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, thatamount sufficient, when taken together with added to the portion of the Debt Financing that remains is available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 Cash 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions contemplated by this Agreement, including the Offer and the Merger, (D) materially adversely affect Parent’s ability to consummate the transactions contemplated by this AgreementAgreement on terms and conditions not less favorable, including taken as a whole, to Parent and Merger Sub (as determined in the Offer and reasonable judgment of Parent) than those in the Merger Debt Commitment Letter 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, 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 FinancingAgreement. Upon request of the Company, Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of Parent’s its efforts to arrange the Debt Financing. Any alternativeFinancing and, substitute 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 replacement debt financing obtained by Parent in accordance with this paragraph and other arrangements (including fee letters), under which any such Alternative Financings is provided, except for any such Contracts or other arrangements that do not impact the previous paragraph is conditionality of the Alternative Financing (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 LetterAgreements”, “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 ). To the extent permitted by applicable, the obligations of each of Parent and Merger Sub in clauses (ii) to (v) under this Section 7.18, and such Alternative Financing 6.14(a) shall be required to comply apply with the provisions of this Agreement to the same 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 respect 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 financingAlternative Financing Agreements.
Appears in 2 contracts
Sources: Merger Agreement (Ren Jinsheng), Merger Agreement (Simcere Pharmaceutical Group)
Financing. (a) From the date Each of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXHoldco, Parent and its Affiliates Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisable, advisable to arrange and obtain the Debt Financing and to consummate the Debt Financing on or prior to the Closing Date. Such actions shall includeterms and conditions described in the Financing Commitments, but not be limited to, using reasonable best efforts to: including by (i) comply with and maintain maintaining in effect the Debt Commitment Letter (subject to any amendmentFinancing Commitments, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below); (ii) satisfy, or obtain a waiver thereof, satisfying on a timely basis all Financing Conditions conditions applicable to the extent within the control of Holdco, Parent and its Affiliates; 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) negotiate, execute and deliver Debt consummating the financing contemplated by the Financing Documents Commitments at or prior 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or Time. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter Letter, (including the flex provisions (if any)x) (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 Section 8.1 and Annex 1)Holdco, then Parent and its Affiliates Merger Sub shall (i) promptly notify the Company thereof and the reasons therefor(y) Holdco, (ii) 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 same or alternative Debt Financing Entities on Transactions with terms and conditions, taken as a whole, no conditions that are not less favorable to Parent in any material respect (as determined by Parent) than the Financing Conditions, not involving any terms and conditions that would 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and event (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such alternative financing; provided that “Alternative Financing”). If 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 Parent Party becomes aware of the existence of any dates related thereto) may be redacted, so long as such redaction does not extend to any terms fact or event that would reasonably be expected to reduce cause the aggregate principal amount 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 such each alternative financing to be funded on the Closing Date or impose additional conditions precedent agreement (together with a redacted copy of any related fee letter) to the funding of such alternative financing on the Closing DateCompany.
(db) From the date None of this Agreement until the earlier Holdco, Parent nor Merger Sub shall amend, alter or waive, or agree to amend, alter or waive, any term of the Effective Time or the termination of this Agreement in accordance with Article IX, Financing Commitments 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 Company Board if such amendmentamendments, modification, supplement, restatement, assignment, substitution alterations or replacement waivers would (A) impose additional conditions precedent or expand upon the conditions precedent to the funding of the Debt Financing, (Bi) 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 caseor (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 amendments would 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 provisions of any of the Financing Commitments by any party thereto or (iii) any refusal by the parties to the Financing Commitments to provide the full financing contemplated by the Financing Commitments.
(c) 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 the Company and each of their respective 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 expected 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 result obtain consents of accountants for use of their reports in an Adverse Effect on Financing. Upon request 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 conduct of any examination, appraisal or review of the financial condition or any of the assets or 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 shall keep 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 informed in reasonable detail or any borrower Subsidiary of the status Company with respect to solvency matters) or otherwise facilitate the pledging of Parent’s efforts to arrange collateral, the Debt Financing. Any alternative, substitute or replacement debt financing obtained by Parent in accordance with this paragraph delivery of pay-off letters 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) other cooperation in connection with the pay-off of existing Indebtedness and release of all related Liens, (vii) taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Debt Financing and/or any Alternative Financing to evaluate the extent permitted Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (B) establishing bank and other accounts (including escrow accounts), blocked account agreements and lock box arrangements in connection with the 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 Parent Parties in connection with the 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 (x) 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 has an obligation to sell, lease, license, surrender, transfer, lend or otherwise dispose of such assets, in reasonable 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 permit the consummation of the 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 Company on the Closing Date to consummate the Merger. The Company shall promptly notify Parent if any information furnished by the Company or any of its Subsidiaries pursuant to this Section 7.186.14(c) is or becomes inaccurate, and such Alternative Financing incomplete or misleading in any material respect. Neither the Company nor any of its Subsidiaries shall be required to comply with the provisions of this Agreement to the same 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 commitment fee or similar fee or incur any liability with respect to the Debt Financing or any interest rates applicable Alternative Financing prior to the Closing. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing and/or any Alternative Financing. Parent shall, promptly upon request by the Company, reimburse (or cause the applicable borrowers to reimburse) the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.14(d) and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all liabilities or losses suffered or incurred by any of them in connection with the arrangement of the Debt 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), 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 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 those that contemplated by the Debt Equity Commitment Letter as in effect on the date hereof Letter, (including the market flex provisions (if any)ii) or agree to waive 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 or condition of this Agreement, including their obligations to consummate the Offer and the Merger, are not subject to, or conditioned on, Parent’s (iii) commence any legal action or Merger Sub’s receipt of financingproceeding against any financing source.
Appears in 2 contracts
Sources: Merger Agreement (Chuanwei Zhang), Merger Agreement (China Ming Yang Wind Power Group LTD)
Financing. (a) 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 use 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 Debt Financing on or prior to the Closing 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 has delivered to the Company on correct and complete copies of the executed commitment letter, dated as of the date hereof; , among Parent, Citigroup Global Markets Inc., JPMorgan Chase Bank, N.A., Barclays Bank PLC and Column Financial, Inc. (iv) in the event that “Debt Commitment Letter”), pursuant to which the Offer Conditions counterparties thereto have been satisfied or waived orcommitted, upon funding would subject to the terms and conditions thereof, to lend the amounts set forth therein (the financing to be satisfied, consummate the Debt Financing (including by instructing the Debt Financing Sources provided pursuant to fund the Debt Financing in accordance with the such Debt Commitment Letter, and enforcing Parent’s rights under as may be amended, modified, supplemented, replaced or extended from time to time after the Debt Commitment Letter and date hereof in compliance with Section 6.12, the definitive agreements relating to the “Debt Financing”).
(b) From Parent expressly acknowledges and agrees that the date consummation 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or any portion of the Debt Financing becomes unavailable is not a condition to its and/or Merger Sub’s and or Partnership Merger Sub’s obligations to effect the Closing. Assuming the accuracy of the representations and warranties of the Company in this Agreement as of the Closing Date and the performance by the Company of its obligations hereunder, the amount of funds to be provided pursuant to the Debt Commitment Letter, if funded in accordance with the terms therein, together with other financial resources of Parent, Merger Sub and Partnership Merger Sub available on or prior to the time of Closing, including cash on hand and marketable securities of Parent, Merger Sub, Partnership Merger Sub, the Company and the Company’s Subsidiaries on the terms Closing Date, will be sufficient to consummate the Mergers, the Transactions and conditions to pay its and its affiliates’ respective monetary obligations that are due on or prior to the Closing Date under this Agreement, including payment of the Merger Consideration, and the payment or funding of all fees, costs, expenses and reserves incurred, payable or required to be funded by Parent, Merger Sub, Partnership Merger Sub, any of their affiliates and, to the extent responsible hereunder, the Company on or prior to the Closing Date in connection with this Agreement and the Transactions.
(c) As of the date hereof, none of Parent, Merger Sub or Partnership Merger Sub, or to the knowledge of Parent, any other counterparty thereto is in breach of any of its covenants or other obligations set forth in, or is in default under, the Debt Commitment Letter, to Parent’s knowledge, as of the date hereof, no event has occurred or circumstances exist that, with or without notice, lapse of time or both, would or would reasonably be expected to (i) constitute or result in a breach or default on the part of Parent, Merger Sub or Partnership Merger Sub, or to the knowledge of Parent, any counterparty thereto, under the Debt Financing, (ii) constitute or result in a failure to satisfy a condition precedent set forth in the Debt Financing or (iii) otherwise result in any portion of the Debt Financing being unavailable. As of the date hereof, none of Parent, Merger Sub or Partnership Merger Sub has received any notice or other communication from any party to the Debt Commitment Letter with respect to (1) any breach or default on the part of Parent, Merger Sub, Partnership Merger Sub or any other party to the Debt Commitment Letter or (2) any intention of such party to terminate the Debt Commitment Letter, to not provide all or any portion of the Debt Financing or to require any additional reserves not contemplated by the Debt Commitment Letter (including or for expenses to be paid by Parent or any of its affiliates on prior to or as a condition to the flex provisions (if any)) (consummation of the Debt Financing at Closing other than as a result provided in the Debt Commitment Letter.
(d) As of the Company’s breach date hereof, the Debt Commitment Letter is a legal, valid, binding and enforceable obligation of any provision Parent and, to the knowledge of this Agreement or failure to satisfy Parent, the conditions set forth other parties thereto, is in Section 8.1 full force and Annex 1)effect, then Parent and its Affiliates shall except as enforceability may be limited by (i) promptly notify the Company thereof bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and the reasons therefor, (ii) use reasonable best efforts to obtain alternative financing from the same general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or alternative Debt Financing Entities on terms and conditions, taken at Law).
(e) Other than as a whole, no less favorable to Parent than the Financing Conditions, not involving any conditions that would constitute an Adverse Effect on Financing (as defined below) as compared to those set forth in the Debt Commitment Letter delivered and any fee letter (a “Fee Letter” and, together with the Debt Commitment Letter, the “Debt Financing Letters”), a copy of which has been provided to the Company on prior to the date hereof, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 there are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate principal amount of such alternative financing to be funded on the Closing Date or impose additional no 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, 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 related to the funding of the Debt Financing, (B) reduce the full net amount of the Debt Financing or the net cash proceeds available from the Debt Financing to an amount any contingencies that is less than the Required Amount (after taking into account any cash on handwould, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) and other sources of immediately available funds)or would reasonably be expected to, (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 transactions 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 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, 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. As of the date hereof, there are no side letters or other Contracts, understandings or arrangements (in each case, so long as such amendments would not be reasonably expected whether written or oral) imposing conditions or other contingencies to result in an Adverse Effect on Financing. Upon request the funding of the Companyfull amount (i.e., 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 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 before giving 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 loan reduction provisions in the Debt Commitment Letter as Letter) of the proceeds of the Debt Financing or otherwise affect the availability of the Debt Financing, other than those set forth in effect the Debt Financing Letters delivered to the Company prior to the date hereof. As of the date hereof, Parent, Merger Sub and Partnership Merger Sub have fully paid, or caused to be fully paid, any and all commitment or other fees which are due and payable on or prior to the date hereof (including pursuant to 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 terms of the Offer and the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of financingDebt Financing Letters.
Appears in 2 contracts
Sources: Merger Agreement (Griffin-American Healthcare REIT II, Inc.), Merger Agreement (Northstar Realty Finance Corp.)
Financing. (a) From 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 date “Commitment Letter”) from the lenders party thereto (collectively, the “Lenders”) pursuant to which the Lenders have agreed, subject to the terms and conditions thereof, to provide debt financing in the amounts set forth therein. The debt financing committed pursuant to the Commitment Letter is collectively referred to in this Agreement as the “Financing.”
(b) Parent has delivered to the Company a true, complete and correct copy of the executed Commitment Letter and any fee letters entered into pursuant to the Commitment Letter, subject, in the case of such fee letters, to redaction solely of fee and other economic provisions that are customarily redacted in connection with transactions of this Agreement until type and that could not in any event affect the earlier conditionality, enforceability, availability, termination or amount of the Effective Time Financing.
(c) Except as expressly set forth in the Commitment Letter, there are no conditions precedent to the obligations of the Lenders to provide the Financing or any contingencies that would permit the termination Lenders to reduce the aggregate principal amount of this Agreement in accordance with Article IXthe Financing, including any condition or other contingency relating to the amount or availability of the 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 its Affiliates shall use reasonable best efforts to take, or cause conditions 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 satisfied by it in the Debt Financing and to consummate the Debt Financing Commitment Letter on or prior to the Closing Date, nor does Parent have Knowledge that any Lender will not perform its obligations thereunder. Such actions shall includeThere are no side letters, but not be limited tounderstandings or other agreements, using reasonable best efforts to: (i) comply with and maintain in effect contracts or arrangements of any kind relating to the Debt Commitment Letter (subject to any amendmentor the Financing that could affect the conditionality, supplementenforceability, replacement, substitutionavailability, 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 amount 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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 DateFinancing.
(d) From The Financing, when funded in accordance with the Commitment Letter and giving effect to any “flex” provision in or related to the Commitment Letter (including with respect to fees and original issue discount), will provide Parent with cash proceeds on the Closing Date sufficient for the satisfaction of all of Parent’s obligations under this Agreement and the Commitment Letter, including the payment of the Merger Consideration, and any fees and expenses of or payable by Parent or Parent’s Affiliates, any required reimbursement of fees and expenses paid by the Company and/or its Subsidiaries, and for any repayment or refinancing of any outstanding indebtedness (including the Company Credit Agreement) of the Company and/or its Subsidiaries contemplated by, or required in connection with the 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 Commitment 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 until Agreement, and will pay in full any such amounts due on or before the earlier of 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 Effective Time or the termination of this Agreement in accordance with Article IX, 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 has not been modified, amended or altered, the Commitment Letter will not be amended, modified or altered at any Debt Financing Document if such amendmenttime 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, supplementamendment, restatement, assignment, substitution alteration or replacement would rescission thereof is contemplated (A) impose additional conditions precedent or expand upon the conditions precedent other than to the funding extent reduced pursuant to the mandatory reduction terms of the Debt FinancingCommitment Letter, (B) reduce including with 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions contemplated by this the Climate Transaction Agreement, ).
(f) In no event shall the receipt or availability of any funds or financing (including the Offer and the Merger, (DFinancing) materially adversely affect Parent’s ability by or to consummate the transactions contemplated by this Agreement, including the 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 Affiliates or any of the other parties financing or other transactions be a condition 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, 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 2 contracts
Sources: Merger Agreement (National Instruments Corp), Merger Agreement (Emerson Electric Co)
Financing. (a) From Subject to the date terms and conditions of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXAgreement, Parent and its Affiliates shall use its reasonable best efforts to take, obtain the Financing on a timely basis including (to the extent the proceeds of the term loans thereunder are needed to consummate the 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 takensatisfied) all such conditions on a timely basis), all actions, and use reasonable best efforts to do, or cause to be done, all things reasonably necessary or advisable, to arrange and obtain causing the Debt Financing and lenders under the New Term Loan Facility to consummate the Debt Financing on or prior to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: Date on the terms and conditions described in the New Term Loan Facility (i) comply with and maintain in effect the Debt Commitment Letter (subject to any amendment, supplement, replacement, substitution, termination or other modification or waiver it being understood that it is not prohibited by clause (d) below); (ii) satisfy, a condition to Closing under this Agreement for Parent to obtain all or obtain a waiver thereof, on a timely basis all Financing Conditions to any portion of 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 Parent will keep the date of this Agreement until the earlier Company reasonably informed of the Effective Time or status of its efforts to arrange the termination of this Agreement in accordance with Article IXFinancing and to satisfy the conditions thereof, Parent and its Affiliates shall give including (i) giving the Company prompt notice upon having Knowledge of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all New Term Loan Facility or any portion termination of the Debt Financing becomes unavailable on the terms New Term Loan Facility and conditions contemplated by the Debt Commitment Letter (including the flex provisions (if any)ii) (other than as a result of upon the Company’s breach reasonable request, advising and updating the Company, in a reasonable level of any provision detail, with respect to the status of this Agreement the Financing and the anticipated closing of the Financing (which shall be at or failure prior to satisfy the conditions Closing). Except as set forth in this Section 8.1 and Annex 1)6.04, then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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 IXnot, without the prior written consent of the Company, Parent and its Affiliates 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, restate, assign, substitute supplement or replace waive any of the Debt Commitment Letter conditions or contingencies to funding contained in the New Term Loan Facility or any Debt Financing Document if other provision of, or remedies under, the New Term Loan Facility, in each case to the extent such amendment, modification, supplement, restatement, assignment, substitution supplement or replacement waiver would reasonably be expected to have the effect of directly or indirectly (A) impose additional conditions precedent or expand upon impairing the conditions precedent to the funding enforceability of the Debt FinancingNew 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) reduce adversely affecting in any material respect the amount 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 Debt Financing or the net cash proceeds available from the Debt Financing 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 Term Loan Facility for the purpose of adding agents, co-agents, lenders, arrangers, bookrunners or other persons that have not executed the New Term Loan Facility as of the date of this Agreement, in each case, subject to an amount that is less than the Required Amount subclauses (after taking into account any cash on handA), available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) and other sources of immediately available fundsB), (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 transactions contemplated by this Agreement, including the Offer and the Merger, (D) materially adversely affect Parent’s ability to consummate the transactions contemplated by this Agreementabove.
(c) Upon any such amendment, including the Offer and the Merger restatement, replacement, supplement 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)modification, 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 the terms of this paragraph and Section 6.04, the previous paragraph is the term “Alternative Financing.New Term Loan Facility” For shall mean for all purposes of this AgreementAgreement the New Term Loan Facility as so amended, references to “Debt Financing” restated, replaced, supplemented or modified. Parent 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 promptly make available to the extent permitted by this Section 7.18Company true and complete copies of any such amendment, restatement, replacement, supplement or modification (with only the fee amounts and such Alternative Financing certain other provisions redacted, which redacted provisions shall be required to comply with not affect the provisions principal amount or availability of this Agreement to the same 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 2 contracts
Sources: Merger Agreement (British American Tobacco p.l.c.), Merger Agreement (Reynolds American Inc)
Financing. (a) From After the date of this Agreement until hereof the earlier of Parent may add to or replace the Effective Time Existing Debt Financing Commitments with additional or replacement debt commitments (the termination of this Agreement in accordance “New Debt Financing Commitments,” and together with Article IXExisting Debt Financing Commitments, Parent and its Affiliates shall use reasonable best efforts the “Debt Financing Commitments”), pursuant to takewhich such lenders party thereto have committed, subject to terms thereof, to provide or cause to be takenprovided the amounts set forth therein (the “New Debt Financing,” and together with the Existing Debt Financing, all actions, the “Debt Financing”) or equity financing commitments (the “New Equity Financing Commitments,” and use reasonable best efforts to do, or cause to be done, all things reasonably necessary or advisable, to arrange and obtain together with the Debt Financing Commitments, the “Financing Commitments”), pursuant to which such parties have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing,” and to consummate together with the Debt Financing on or prior Financing, the “Financing”). Parent shall as promptly as practicable deliver to the Closing DateCompany true and complete copies of any commitment letters executed after the date hereof. Such actions Notwithstanding the foregoing, neither Parent nor Purchaser shall includeagree to or permit any replacement of, but not or amendment, supplement or other modification to be limited made to, using reasonable best efforts to: (i) comply with and maintain in effect or any waiver of any material provision or remedy under, the Debt Commitment Letter (subject to any Financing Commitments if such replacement, amendment, supplement, replacementmodification, substitutionwaiver or remedy, termination or other modification or waiver that is not prohibited by clause (d) below); (ii) satisfywould result in the amount available thereunder, or obtain a waiver thereoftogether with Parent’s available cash, on a timely basis all Financing Conditions to the extent within the control of Parent cash equivalents, fully committed 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)definitive financing commitments, which shall reflect being less than the terms contained aggregate amount that is required to consummate the transactions contemplated hereby, adversely amends or expands the conditions to drawdown the Financing in the Debt Commitment Letter (including any “market flex” provisions (if any) related thereto) or on such other terms acceptable to Parent respect that would not constitute an Adverse Effect on Financing as compared make such conditions materially less likely 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 that would reasonably be expected to delay the Debt Financing (including by instructing Purchase Time or the Debt Financing Sources Effective Time, or is materially adverse to fund the Debt Financing in accordance with interests of the Debt Commitment Letter, Company and enforcing Parent’s rights under its Subsidiaries taken as a whole prior to the Debt Commitment Letter Effective Time. Parent and Purchaser shall keep the definitive agreements Company reasonably apprised of material developments relating to the Debt Financing).
(b) From . For the date avoidance of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXdoubt, Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party failure to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event obtain all or any portion of the Debt Financing becomes unavailable on shall not in and of itself relieve or alter the terms and conditions contemplated by the Debt Commitment Letter (including the flex provisions (if any)) (other than as a result obligations of the Company’s breach of any provision of this Agreement or failure to satisfy the conditions set forth in Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions contemplated by this Agreement, including the Offer and the Merger, (D) materially adversely affect Parent’s ability Purchaser to consummate the transactions contemplated hereby on the terms contemplated by this Agreement, including the 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, 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 2 contracts
Sources: Agreement and Plan of Merger (LS Cable Ltd.), Merger Agreement (Superior Essex Inc)
Financing. (a) 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 use its reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, advisable or advisable, proper to arrange consummate and obtain the Debt Financing and to consummate the Debt Financing on the terms and conditions described in the Commitment Letter (or prior on revised terms that do not contain any terms which would reasonably be expected to prevent, materially delay or materially impede the Closing Date. Such actions shall includeconsummation of the Financing or the transactions contemplated by this Agreement), but not be limited to, including using reasonable best efforts to: to (i) comply with and maintain in effect the Debt Commitment Letter (subject to any amendmentLetter, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below); (ii) satisfy, or obtain a waiver thereof, satisfy on a timely basis all Financing Conditions conditions to the extent within funding of 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, (iii) enforce the terms of the Commitment Letter delivered to the Company on the date hereof; and (iv) in negotiate and enter into definitive agreements with respect thereto on the event terms and conditions contemplated by the Commitment Letter. Parent and Merger Sub may enter into or authorize any amendment, replacements, supplement or other modification of, or waive any of its material rights under, the Commitment Letter without the Company’s prior consent, other than any amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter that would reasonably be expected to prevent, materially delay or materially impede the Offer Conditions have been satisfied consummation of the Financing or waived or, upon funding would be satisfied, consummate the Debt Financing (including transactions contemplated by instructing this Agreement. Parent shall use its reasonable best efforts to extend the Debt Financing Sources commitment to fund provide the Debt Financing in accordance with the Debt Commitment Letter, and enforcing Parent’s rights under terms of the Debt Commitment Letter and if it becomes necessary to ensure that the definitive agreements relating to the Debt Financing)Financing is available at Closing.
(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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or any portion of the Debt Financing becomes unavailable on the terms and conditions described in or contemplated by the Debt Commitment Letter (including the flex provisions (if any)) (other than as a result of for any reason, Parent shall, in consultation with the Company’s breach of any provision of this Agreement or failure to satisfy the conditions set forth in Section 8.1 and Annex 1), then Parent and use its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 arrange to Parent than the Financing Conditions, not involving any conditions that would 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amountobtain, as promptly as practicable following the occurrence of such event, and alternative financing from the same or alternative sources (iiithe “Alternative Financing”) use reasonable best efforts in an amount sufficient to enable Parent to fund the Merger Consideration, which Alternative Financing would not contain any provisions that would reasonably be expected to prevent, materially delay or materially impede the consummation of the Financing or the transactions contemplated by this Agreement. If an Alternative Financing is obtained pursuant to this Section 5.14(b), Parent shall obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such alternative financing; provided Alternative Financing, and thereafter the “Commitment Letter” as defined herein shall refer to such financing commitment in respect of the Alternative Financing.
(c) Parent acknowledges and agrees that any provisions obtaining the Financing is not a condition to the Closing. For the avoidance of doubt, if the Financing has not been obtained, Parent shall continue to be obligated, until such time as the Agreement is terminated in accordance with its terms and subject to the fulfillment or waiver of the condition set forth in such new financing commitment relating Article VI, to fees, pricing terms, “market flex” provisions (if any) and other terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce complete the aggregate principal amount of such alternative financing to be funded Merger 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions terms 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 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, 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 2 contracts
Sources: Merger Agreement (Williams Companies Inc), Merger Agreement (Williams Companies Inc)
Financing. (a) From the date of this Agreement Spinco shall use reasonable best efforts to (i) maintain in effect, until the earlier of the Effective Time funding of the initial funding of the Financing (as defined below) and 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 agreement in effect as of the date hereof; and (B) any associated fee letters (together, as amended, restated, replaced, supplemented or 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 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 to agree, (A) to terms and conditions of the 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 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 date of the Distribution incur the indebtedness provided for under the Spinco Commitment Letter and the 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 accordance with Article IXany 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, Parent its Subsidiaries and its Affiliates shall 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, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, advisable and proper in connection with the arrangement, marketing and consummation of the issuance of any debt securities or advisablethe incurrence of any other long-term debt financing by Spinco in lieu of the Financing (such financing, to arrange and obtain the Debt Financing and to consummate the Debt Financing “Permanent Financing”), on or prior to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: including (i) comply with and maintain consulting 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or any portion of the Debt Financing becomes unavailable good faith 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons thereforPermanent 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 than Spinco and its Subsidiaries) to be an issuer of the Financing or the 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 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 Financing or Permanent Financing other than (i) documentation executed and delivered by Spinco and its Subsidiaries and (ii) customary 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 obtain alternative financing from the same or alternative Debt Financing Entities on terms and conditions, taken as take such action in a whole, no less favorable to Parent than the Financing Conditions, not involving any conditions manner that would constitute an Adverse Effect on Financing not jeopardize such attorney-client privilege) or (as defined below2) as compared to those set forth jeopardize (in the Debt Commitment Letter delivered to the Company on the date hereof, that, when taken together with the portion Utah’s reasonable determination) any attorney-client privilege of the Debt Financing that remains available Utah or any of its Subsidiaries (in which case Utah and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) Subsidiaries shall use reasonable best efforts to obtain, and when obtained, provide the Company with take such action in a true and complete copy manner that would not jeopardize such attorney-client privilege); or (G) result in a material violation or breach of, or a new financing commitment that provides for such alternative financing; provided that default under, the Organizational Documents of Pluto or its Subsidiaries, or the Organizational Documents of Utah or its Subsidiaries, or 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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 Dateapplicable Law.
(di) From All non-public or otherwise confidential information regarding the date of Spinco Business obtained by Utah or its Representatives pursuant to this Agreement until the earlier of the Effective Time Section 8.8 or the termination of this Agreement otherwise shall be kept confidential in accordance with Article IX, without the prior written consent terms of the Company, Parent Confidentiality Agreement. Notwithstanding any other provision set forth herein or in any other agreement between Pluto and its Affiliates shall not amend, modify, supplement, restate, assign, substitute Utah (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 existing revolving credit and securitization facilities) and other sources of immediately available fundstheir respective Affiliates), (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 transactions contemplated by this Agreement, including the Offer Pluto agrees that Utah may share information with respect to Spinco and the MergerSpinco Business with the Spinco Lenders, (D) materially adversely affect Parent’s ability and that Utah 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 consummate the transactions contemplated be provided by this Agreement, including the Offer and the Merger or (E) materially adversely impact the ability of Parent Utah or any of its Affiliates’ Subsidiaries pursuant to enforce 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 rights against Representatives pursuant to this Section 8.8 or otherwise shall be kept confidential in accordance with the Debt Financing Sources or any terms of the Confidentiality Agreement. Notwithstanding any other parties to provision set forth herein or in any other agreement between Pluto or Spinco, on the Debt Commitment Letters one hand, and Utah, on the other hand (or the definitive agreements with respect thereto (clauses (A) through (Etheir respective Affiliates), each an “Adverse Effect on Financing”); provided Utah agrees 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 Pluto 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 Spinco may share information with respect to the businesses of Utah and its Subsidiaries with the Spinco Lenders, and that Pluto, Spinco and such appointments, (2) modify pricing, (3) terminate or reduce any commitments under the Debt Financing in order to obtain alternative Spinco Lenders may share such information with potential financing 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 marketing efforts for the Financing; provided, however, that the recipients of such information and any other information contemplated to the extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 2 contracts
Sources: Business Combination Agreement (Pfizer Inc), Business Combination Agreement (Mylan N.V.)
Financing. (a) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX, Each Parent and its Affiliates Party shall use its reasonable best efforts to takeobtain, or cause to be takenobtained, all actionsthe proceeds of the Financing on the terms and conditions described in the Commitment Letters (including, and use as necessary, the “flex” provisions contained in the Fee Letter), including using its reasonable best efforts with respect to do(i) maintaining in effect the Commitment Letters, or cause (ii) negotiating definitive agreements with respect to be done, all things reasonably necessary or advisable, to arrange and obtain 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 Debt Financing on or prior to transactions contemplated herein, and (iii) taking into account the Closing Date. Such actions shall includeexpected timing of the Marketing Period, 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, satisfying on a timely basis all Financing Conditions conditions applicable to the extent within the control of Parent and its Affiliates; (iii) negotiate, execute and deliver Debt Subsidiaries to obtaining the Financing Documents to that are within the extent required to pay Parent Parties’ control. In 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 event that all conditions contained in the Debt Commitment Letter and the Securities Purchase Agreement (including any “market flex” provisions (if any) related thereto) or on such other terms acceptable than, with respect to Parent that would not constitute an Adverse Effect on Financing as compared to those set forth in the Debt Commitment Letter delivered Financing, the availability of the Equity Financing, the Subordinated Securities Financing, the MSDC Financing or the Rollover Investment and, with respect to the Company on Subordinated Securities Financing, the date hereof; and (ivDebt Financing, the Equity Financing, the MSDC Financing or the Rollover Investment) in the event that the Offer Conditions have been satisfied (or waived or, upon funding would will be satisfied), consummate each Parent Party shall use its reasonable best efforts to timely cause the Debt Financing (including by instructing Lenders and the Debt Financing Sources Subordinated Securities Purchaser to fund the Debt Financing in accordance with and the Debt Commitment LetterSubordinated Securities Financing, and enforcing Parent’s as applicable (including by seeking through litigation to enforce its rights under the Debt Financing Commitment Letter and Definitive Agreements and the definitive agreements relating to the Debt FinancingSecurities Purchase Agreement, as applicable).
(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, The Parent and its Affiliates Parties shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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 IXnot, without the prior written consent of the Company, Parent and its Affiliates shall not amend(i) terminate any Commitment Letter, modify, supplement, restate, assign, substitute or replace the Debt 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 Debt Financing Document waiver of any material provision or remedy under, or replace, the Commitment Letters if such amendment, modification, supplementwaiver, restatement, assignment, substitution or replacement (w) would (A1) impose additional conditions precedent or expand upon the conditions precedent add any new condition to the funding of the Debt FinancingFinancing Commitments (or modify any existing condition in a manner adverse to Parent) or otherwise that would be reasonably expected to adversely affect (including with respect to timing, (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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (C) prevent or materially delay or make materially less likely the funding expected timing of the Debt Financing (or Marketing Period) the satisfaction ability of the Financing Conditions) on the Closing Date or materially impair, delay or prevent the consummation of the transactions contemplated by this Agreement, including the Offer and the Merger, (D) materially adversely affect Parent’s ability Parent Parties to consummate the transactions contemplated by this Agreement, including Agreement or the 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 likelihood of the other parties to the Debt Commitment Letters Parent Parties doing so, 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 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 taking into account the Debt Financing in order to obtain alternative sources of debt financing in lieu of all or a portion expected timing of the Debt Financing and/or (4) increase the aggregate amount of the Debt FinancingMarketing Period, in each case, so long as such amendments would not be reasonably expected to result in an Adverse Effect on Financing. Upon request make the timely funding of any of the Company, Parent shall keep the Company informed in reasonable detail Financing or satisfaction of the status conditions to obtaining any of Parent’s efforts the Financing less likely 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 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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.occur,
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Dell Inc)
Financing. (a) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX, The Parent and its Affiliates Entities shall use reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisable, advisable to arrange consummate and obtain the Debt Financing on the terms and conditions described in the Financing Commitments, 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 Debt 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 Closing Date. Such actions shall includeClosing, 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 enforce the Financing Documents Commitments. Notwithstanding anything to the extent required to pay the Required Amount (after taking into account any cash on hand, available lines of credit contrary contained in this Agreement (including under Borrower’s existing revolving credit and securitization facilities) and other sources the foregoing provisions of immediately available fundsthis Section 6.10(a)), which in no event shall reflect the terms contained in obligations of the Debt Commitment Letter (including Parent Entities hereunder be construed to require any “market flex” provisions (if any) related thereto) Parent Entity or on such other terms acceptable any of their Affiliates to Parent that would not constitute an Adverse Effect on Financing as compared enforce by litigation any of its rights pursuant 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 Commitment or otherwise against any of Parent’s 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)sources.
(b) From Parent shall keep the date of this Agreement until the earlier Company informed on a reasonably current basis in reasonable detail of the Effective Time status of its efforts to obtain and consummate the Debt Financing. Parent shall furnish correct and complete copies of all definitive agreements entered into by Parent (or any of the termination of this Agreement in accordance Parent Entities) with Article IX, Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party respect to the Debt Commitment Letter of which Parent or its Affiliates becomes aware; to the Company promptly upon their execution, provided that none of Parent or Merger Sub shall the same pricing terms, fee amounts and economic terms redacted from the Debt Fee Letter provided to the Company may be required to disclose or provide any redacted from such information, the disclosure of which, in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) definitive agreements. In 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)provisions) (other than as a result of contemplated in the Company’s breach of any provision of this Agreement or failure to satisfy Debt Commitment Letter, the conditions set forth in Section 8.1 and Annex 1), then Parent and its Affiliates Entities shall (i) promptly notify the Company thereof and the reasons therefor, (ii) use their reasonable best efforts to arrange to obtain alternative financing from alternative sources in an amount sufficient to consummate the same or transactions contemplated by this Agreement (any such alternative Debt Financing Entities on terms and conditionsFinancing, taken as a whole“Alternative Debt Financing”); provided, no less favorable to Parent than the Financing Conditions, not involving that any conditions that would 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, that, when taken together with the portion of the such Alternative Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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 IXshall not, without the prior written consent of the Company, Parent and its Affiliates shall not amend, modify, supplement, restate, assign, substitute or replace Company (i) reduce the aggregate amount of the Debt Commitment Letter Financing available on the Closing Date or any the length of the commitment therefor, from that contemplated by the Debt Financing Document if such amendmentLetter as in effect on the date hereof, modification, supplement, restatement, assignment, substitution or replacement would (Aii) impose additional conditions precedent or expand upon the conditions precedent to the funding of the Debt Financing, (B) reduce the amount of Financing as set forth in 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 or (including iii) in any way reasonably be expected to adversely impact or delay in any respect the market flex provisions (if any)) ability of Parent and Sub to consummate the Merger in accordance with this Agreement or agree to any term (including any market flex term (if any)) less favorable (taken as a whole) to Parent than such term contained the Financing on the terms and conditions described in the Debt Commitment Letter Financing Commitments as in effect on the date hereof (including the market flex provisions (if any))hereof. Parent shall furnish correct and Merger Sub expressly acknowledge 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 agree economic terms contained in the agreements governing the Alternative Debt Financing that their obligations under this Agreement, including their obligations 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 status of its efforts to obtain and consummate the Offer and Alternative Debt Financing. In the Mergerevent Alternative Debt Financing is arranged in accordance with this Section 6.10(b), are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of financingthe term “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. (ai) From 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 until (as amended, modified, supplemented, replaced or extended from time to time after the earlier of the Effective Time or the termination date of this Agreement in accordance compliance with Article IXthis Agreement, Parent and its Affiliates shall use reasonable best efforts the “Debt Financing Commitments”), from each of the financing sources identified therein (collectively, the “Debt Financing Sources”), pursuant 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 which the Debt Financing Sources have committed, subject to the terms and conditions thereof, to consummate 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 on or prior Sources related to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: Debt Financing (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“Fee Letter”); .
(ii) satisfy, Except for the Fee Letter 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 expressly 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 orFinancing Commitments, 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 as of the date of this Agreement until the earlier of the Effective Time Agreement, there are no side letters or the termination of this Agreement in accordance with Article IXother agreements, Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation Contracts or threatened material breach or repudiation by any party written arrangements to the Debt Commitment Letter of which Parent or any of its Affiliates becomes aware; provided that none of Parent affiliates is a party related to the funding or Merger Sub shall be required to disclose or provide any such informationinvesting, the disclosure of whichas applicable, in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or any portion of the Debt Financing becomes unavailable on which could reasonably be expected to adversely affect the terms and conditions availability of the Debt Financing contemplated by the Debt Commitment Letter (including the flex provisions (if any)) (other than as a result Financing Commitments. Assuming satisfaction of the Company’s breach of any provision of this Agreement or failure to satisfy the conditions set forth in Section 8.1 6.01 (to the extent any such condition is a condition under the control of the Company) and Annex 1)Section 6.03, then 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 Affiliates shall (i) promptly notify controlled affiliates with respect to any of the Company thereof and the reasons therefor, (ii) use reasonable best efforts to obtain alternative financing from the same or alternative Debt Financing Entities on 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, taken 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 a whole, no less favorable to Parent than the Financing Conditions, not involving any conditions that would constitute an Adverse Effect on Financing (as defined below) as compared to those expressly set forth in the Debt Commitment Letter delivered to the Company on the date hereof, that, when taken together with the portion of 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 remains available will be provided by controlled affiliates of Parent pursuant to the Affiliate Sale Agreement, in the aggregate, shall provide Parent and Merger Sub with cash proceeds on the 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 Commitments, including the payment of any 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 cash on handindebtedness required to be repaid, available lines of credit redeemed, retired, canceled, terminated or otherwise satisfied in connection with the Merger (including under Borrower’s existing revolving credit all indebtedness of the Company and securitization facilitiesits 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 other sources effect and constitute valid and binding obligations of immediately available fundsParent and any of its affiliates party thereto and, is at least equal to the Required Amountknowledge 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 promptly as practicable following of the occurrence date of such eventthis Agreement, and (iii) use reasonable best efforts to obtainno event has occurred that, and when obtainedwith or without notice, provide the Company with a true and complete copy oflapse of time, a new financing commitment that provides for such alternative financing; provided that any provisions set forth in such new financing commitment relating to feesor both, pricing terms, “market flex” provisions (if any) and other terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce constitute a default or breach or a failure to satisfy a condition precedent on the aggregate principal amount part of such alternative financing 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 funded on the Closing Date or impose additional conditions precedent paid pursuant to the funding terms of such alternative financing the Debt Financing Commitments and the Fee Letters on the Closing Date.
(d) From 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 until or the earlier 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 Merger and the other transactions contemplated hereby, 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 or the termination of this Agreement in accordance with Article IX, 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 (immediately 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), (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 transactions contemplated by this Agreement, including hereby. For 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 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, 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 the term “Solvent” when used with respect to “Debt Financing” shall include the financing contemplated by any Alternative Financing and references to “Debt Commitment Letter”person, “Debt Fee Letters”, “Debt Financing Documents”, “Debt Financing Entities”, “Debt Financing Sources”, or “Financing” shall include the documents (or commitments or financing sourcesmeans that, as applicableof 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 value of all “liabilities of such person, including contingent and other liabilities,” as of such date, as such quoted terms are generally determined in connection accordance with any Alternative Financing to applicable laws governing determinations of the extent permitted by this Section 7.18insolvency of debtors, and such Alternative Financing shall be required to comply with (ii) the provisions of this Agreement to the same extent as the Debt Financing. Notwithstanding anything to the contrary contained in this Agreement, in no event shall Parent or its Affiliates amount that will be required to pay any fees or any interest rates applicable to the Alternative Financing in excess probable liabilities of those contemplated by the Debt Commitment Letter as in effect such person on the date hereof its existing debts (including contingent and other liabilities) 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 market flex provisions operation of the businesses in which it is engaged or proposed to be engaged following such date, and (if any)c) or agree such person will be able 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 Agreementpay its liabilities, including their obligations contingent and other liabilities, as they mature. For purposes of this definition, “not have an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to consummate the Offer be engaged” and the Merger“able to pay its liabilities, are not subject toincluding contingent and other liabilities, as they mature” means that such person will be able to generate enough cash from operations, asset dispositions or refinancing, or conditioned ona combination thereof, Parent’s or Merger Sub’s receipt of financingto meet its obligations as they become due.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Sunedison, Inc.), Agreement and Plan of Merger (Vivint Solar, Inc.)
Financing. (a) 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 Each party shall use its reasonable best efforts to take, or cause arrange and obtain debt financing as promptly as reasonably necessary for the proceeds thereof to be takenavailable 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 actionsparties (in each party’s sole discretion) (any financing described in this sentence, and “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 do, or cause to be done, all things reasonably necessary or advisable, to arrange and obtain the Debt Financing and to consummate the Debt Financing on or prior to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: (i) comply negotiate and enter into definitive agreements with respect to such Acceptable Financing, and maintain in effect the Debt Commitment Letter (subject to any amendmentoffer customary fees, supplementdiscounts and other incentives to potential financing sources, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below); (ii) satisfy, or obtain a waiver thereof, satisfy on a timely basis all Financing Conditions conditions applicable 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 Acceptable Financing in accordance with the Debt Commitment Letter, and enforcing Parent’s rights under the Debt Commitment Letter and the such 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such eventagreements, and (iii) use reasonable best efforts to obtainconsummate the Acceptable Financing at or prior to the Closing.
(c) With respect to any Acceptable Financing proposed to be entered into by any party hereto, each party shall, and when obtainedshall 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 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 the Company with a true any financial and complete copy ofother information customarily included in any such document) and (B) materials for rating agency presentations, a new financing commitment that provides (iii) obtain customary accountants’ comfort letters including “negative assurance” comfort and consents of accountants for such alternative financing; provided that use of their reports in any provisions set forth in such new financing commitment materials relating to feessuch Acceptable Financing, pricing termslegal opinions, “market flex” provisions (if any) appraisals, surveys, title insurance and other terms that are customarily redacted customary documentation and items relating to such Acceptable Financing, (including iv) execute and deliver, as of the Closing, any dates related thereto) pledge and security documents, other definitive financing documents, or other certificates or documents, as may be redactedreasonably necessary to facilitate such Acceptable Financing, so long as such redaction does not extend and (v) take all corporate actions, subject to any terms that would the Closing, reasonably be expected necessary or customary to reduce permit the aggregate principal amount consummation of such alternative financing Acceptable Financing and to permit the proceeds thereof to be funded made available 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 2 contracts
Sources: Merger Agreement (Mirant Corp), Merger Agreement (Rri Energy Inc)
Financing. (a) 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 use its reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisable, advisable to arrange and obtain consummate the Debt Financing and financing necessary to consummate the Transactions (the "Debt Financing Financing") on or prior to the Closing Date. Such actions shall includeterms and conditions described in the Debt Commitment Letter, but not be limited to, including using reasonable best efforts to: 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, satisfy on a timely basis all Financing Conditions to the extent within the control of Parent terms, covenants 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 conditions set forth in the Debt Commitment Letter delivered to the Company Letter; (ii) enter into definitive agreements with respect thereto on the date hereofterms and conditions contemplated by the Debt Commitment Letter; (iii) enforce its rights under the Debt Commitment Letter; and (iv) in the event that the Offer Conditions have been satisfied or waived or, upon funding would be satisfied, 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.
(including by instructing b) Parent shall keep the Company informed with respect to all material activity concerning the status of the Debt Financing Sources to fund the Debt Financing in accordance with the Debt Commitment Letter, and enforcing Parent’s rights under contemplated by 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 of any material breachadverse change with respect to such Debt Financing. Without limiting the foregoing, repudiation Parent agrees to notify the Company promptly, and in any event within two Business Days, if at any time (i) any Debt Commitment Letter shall expire or threatened material breach or repudiation by be terminated for any reason, (ii) any financing source that is a party to any Debt Commitment Letter notifies Parent that such source no longer intends to provide financing to Parent on the terms set forth therein, or (iii) for any reason Parent no longer believes in good faith that it will be able to obtain all or any portion of the Financing contemplated by the Debt Commitment Letter on the terms described therein. Parent shall not, and shall not permit any of which Parent or its Affiliates becomes aware; provided to, without the prior written consent of the Company, take or 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 none of Parent could reasonably be expected to breach or Merger Sub shall be required to disclose make untrue any representation or provide any such information, the disclosure of which, warranty contained in the judgement Commitment Letters or otherwise impair, delay or prevent consummation of the Financing contemplated by any of the Debt Commitment Letter. Parent upon advice 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 outside counsel, is subject to attorney-client privilege or which would be in violation Transactions without the prior written consent of any confidentiality obligationthe Company.
(c) In the event all or If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by in the Debt Commitment Letter (including the flex provisions (if any)) (other than as or any Debt Commitment Letter shall be terminated or modified in a result of the Company’s breach of manner materially adverse to Parent for any provision of this Agreement or failure to satisfy the conditions set forth in Section 8.1 and Annex 1)reason, then Parent and shall use its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) use reasonable best efforts to arrange to obtain alternative financing from alternative sources in an amount sufficient to consummate 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 Adverse Effect on Financing Transactions (as defined below) as compared to those set forth in the Debt Commitment Letter delivered to the Company on the date hereof, that, when taken together with the portion of the Debt Financing that remains available and any cash on hand, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities"Alternate Financing") and other sources of immediately available funds, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when and, if obtained, will provide the Company with a true and complete copy of, a new financing commitment that provides for at least the same amount of financing as such alternative financing; provided that Debt Commitment Letter as originally issued and on 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 Alternate Financing on the terms and conditions described in any provisions New Commitment Letter, including using reasonable best efforts to (i) satisfy on a timely basis all terms, covenants and conditions set forth in such new financing commitment relating to fees, pricing terms, “market flex” provisions the New Commitment Letter; (if anyii) and other terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 enter 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), (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 transactions 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 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, 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 terms 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 conditions contemplated by the Debt New Commitment Letter as in effect on Letter; (iii) enforce its rights under the date hereof New Commitment Letter; and (including the market flex provisions (if any)iv) 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 Alternate Financing at or prior to the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of financingClosing.
Appears in 2 contracts
Sources: Merger Agreement (Lyondell Chemical Co), Agreement and Plan of Merger (AI Chemical Investments LLC)
Financing. (a) 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 The Purchaser shall use 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 Debt Financing on or prior to the Closing Date. Such actions shall includeDate on the terms and conditions described in the Debt Commitment Letter (as the same may be amended, but not be limited tomodified or replaced in accordance with this Section 8.08), using including its reasonable best efforts to: 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)and comply with its obligations thereunder; (ii) satisfy, or obtain a waiver thereof, negotiate and execute the financing documents 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); (iii) satisfy on a timely basis (taking into account the expected timing of the Marketing Period), or on such 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 acceptable to Parent that would not constitute an Adverse Effect on Financing as compared to those 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 delivered to the Company (provided, however, that in no event shall reasonable best efforts include any obligation on the date hereofpart 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 (ivv) upon satisfaction of the conditions set forth in the event that Debt Commitment Letter, to consummate the Offer Conditions 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 been satisfied or waived or, upon funding would be satisfied, consummate the effect of reducing) the aggregate amount of the Debt Financing (including by instructing 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 Sources (or satisfaction of the conditions to fund the Debt Financing Commitment Letter that are in accordance 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 enforcing Parent’s rights under (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter and the definitive agreements relating 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, amendment, modification, waiver or replacement of the Debt Financing)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) 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter (including Letter, 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 Section 8.1 and Annex 1), then Parent and its Affiliates Purchaser shall (i) promptly notify the Company thereof Seller of such failure and the reasons therefor, 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 Entities on being replaced that is still available, to consummate the transactions contemplated hereby with terms and conditions, taken as a whole, no conditions that are not materially less favorable to Parent the Purchaser, in the aggregate, than the Financing Conditions, not involving any terms and conditions that would constitute an Adverse Effect on Financing (as defined below) as compared to those set forth in the Debt Commitment Letter delivered (giving effect to any applicable flex provisions), except as agreed by the Company on the date hereof, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required AmountPurchaser, as promptly as practicable following the occurrence of such eventevent (the “Alternative Debt Financing”). The Purchaser shall as soon as reasonably practicable deliver a true, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true correct and complete copy ofof each alternative financing commitment (collectively, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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 New 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 reference in accordance with this paragraph and Agreement to the previous paragraph is the “Alternative Financing.” For purposes of this Agreement, references to “Debt Financing” shall include the financing contemplated by the Debt Commitment Letter on the date hereof, as permitted to be amended, modified or replaced (in whole or in part) by this Section 8.08, including any Alternative Financing Debt 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 such debt commitment letters as permitted to be amended, modified or replaced (in whole or commitments or financing sources, as applicablein part) in connection with any Alternative Financing to the extent permitted by this Section 7.188.08, including any New Debt Commitment Letter.
(c) Prior to the Closing, the Purchaser shall keep the Company reasonably informed, upon the request of the Company, of the status of its efforts to arrange the Debt Financing and such Alternative Financing shall be required to comply with give the Company prompt notice: (i) of any breach of any material provisions of this Agreement to the same 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 or definitive document related to the date hereof (including the market flex provisions (if any)) or agree Debt Financing by any party to any term Debt Commitment Letter or definitive document related to the Debt Financing of which it has Knowledge, in each case to the extent such breach could reasonably be expected to delay or prevent the Closing, and (including ii) of the receipt of any market flex term written notice or other written communication from any Debt Financing Source with respect to any (if any)A) less favorable (taken as a whole) actual or potential breach, default, termination or repudiation by any party to Parent than such term contained in any Debt Commitment Letter or any definitive document related to the Debt Financing or any provisions of the Debt Commitment Letter as in effect on or (B) dispute or disagreement between or among any parties to any Debt Commitment Letter with respect to the date hereof (including obligation to fund the market flex provisions (if any)). Parent and Merger Sub expressly acknowledge and agree that their obligations under this Agreement, including their obligations Debt Financing or the amount of the Debt Financing to consummate be funded at the Offer and the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of financingClosing.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Amag Pharmaceuticals Inc.)
Financing. (a) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXBuyer shall, Parent and shall cause its Affiliates shall to, use its reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary or advisableto issue publicly offered tax-exempt and taxable bonds to fund a portion of the Purchase Price (the “Financing”). The net cash proceeds from the Financing, to arrange and obtain the Debt Financing and together with available cash of Buyer, will be sufficient to consummate the Debt Financing on or prior to proposed transaction, including the Closing 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 payment of any material breach, repudiation fees and expenses of or threatened material breach or repudiation payable by any party to the Debt Commitment Letter of which Parent or 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, Buyer in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together connection with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions contemplated by this Agreement. During the period prior to the Closing and at Buyer’s sole cost and expense, including Seller shall use its commercially reasonable efforts to provide to Buyer all cooperation reasonably requested by Buyer in connection with the Offer Financing, including: (a) providing such financial and other operational information regarding the Merger, (D) materially adversely affect Parent’s ability Assets as Buyer shall reasonably request in order to consummate the transactions contemplated by this AgreementFinancing, including all information, financial statements and financial and operational data regarding the Offer Seller Entities and the Merger or Acquired Companies and of a type and form customary for financings similar to the Financing; (Eb) materially adversely impact the ability assisting in preparation of Parent or any of its Affiliates’ to enforce their respective rights against the Debt Financing Sources or any a management’s discussion and analysis of the other parties Seller Entities’ and Acquired Companies’ results of operations to be included in a preliminary official statement; and (c) providing customary authorization and representation letters in connection with 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 preparation and distribution of the Companyconfidential information memorandum. Seller and its representatives shall be given a reasonable opportunity to review and comment on any materials, amend, modify, supplement, restate, assign, substitute documents or replace the Debt Commitment Letter, including (1) memoranda 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, be distributed in connection therewith, amend with 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 caseand Buyer shall give due consideration to any comments proposed by Seller or its representatives. Buyer shall indemnify and hold harmless Seller and its representatives from and against any and all liabilities, so long as such amendments would not be reasonably expected to result in an Adverse Effect on Financing. Upon request of the Companylosses, Parent shall keep the Company informed in reasonable detail of the status of Parent’s efforts to arrange the Debt Financing. Any alternativedamages, substitute claims, third-party costs and expenses, interest, awards, judgments and penalties suffered 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) incurred in connection with any Alternative Financing to aspect or arrangement of the extent permitted by this Section 7.18Financing, and such Alternative Financing shall be required to comply with any information utilized in connection therewith (other than the provisions of this Agreement to the same 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 anyFinancial Statements)) 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 2 contracts
Sources: Asset Purchase Agreement (Community Health Systems Inc), Asset Purchase Agreement (Community Health Systems Inc)
Financing. (a) From Prior to the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXClosing, Parent and its Affiliates Merger Sub shall use their reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, advisable or advisable, desirable to arrange and obtain the Debt Financing and to consummate the Debt Financing on terms and conditions no less favorable to Parent and Merger Sub than those described in or prior to contemplated by the Closing 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 and 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 Fee Letter (including any “market flex” provisions that are contained in the Fee Letter), including using reasonable best efforts to (if anyi) related theretosatisfy on a timely basis (taking into account the anticipated timing of the Marketing Period) or on such other terms acceptable all conditions applicable to Parent that would not constitute an Adverse Effect on Financing as compared to those or Merger Sub 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Fee Letter (including definitive agreements related thereto) that are within its control, including the flex provisions (if any)) (other than payment of any commitment, engagement or placement fees required as a result of condition to the Company’s breach of any provision of this Agreement or failure to satisfy the conditions set forth in Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons thereforFinancing, (ii) use reasonable best efforts to obtain alternative financing from maintain in effect 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 Adverse Effect on Financing (as defined below) as compared to those set forth in the Debt Commitment Letter delivered (subject to the Company on the date hereof, that, when taken together with the portion of the Debt Financing that remains available and any cash on hand, available lines of credit (including under BorrowerParent’s existing revolving credit and securitization facilities) and other sources of immediately available funds, is at least equal right to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 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 Debt “market flex” provisions contained in the Fee Letter), (iii) consummate the Financing Document 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 amendmentfact and shall use their reasonable best efforts to obtain as promptly as practicable alternative debt financing (the “Alternative Financing”) in amounts, modificationwhen added to any Financing remaining available to Parent, supplementsufficient to consummate the Transactions, restatementincluding, assignmentfor the avoidance of doubt, substitution or replacement payment of the Required Amount and that would not (Ai) impose additional conditions precedent or expand upon the include any conditions precedent to the funding of Financing that are not contained in the Debt Financing, Commitment Letter and the Fee Letter that would reasonably be expected to (B1) 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (C) prevent or materially delay or make materially less likely the funding of the Debt Financing (or the satisfaction of the Financing Conditionsconditions to obtaining the Financing) on the Closing Date less likely to occur or (2) materially impair, delay or prevent the consummation of Closing and (ii) otherwise reasonably be expected to materially delay or prevent the transactions 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 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”)Closing; provided that Parent mayand 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, without further, that if Parent and Merger Sub proceed with such Alternative Financing, Parent and Merger Sub shall be subject to 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 same obligations with respect to such appointments, (2Alternative Financing as set forth in this Section 6.09(a) modify pricing, (3) terminate or reduce any commitments under with respect to 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, and all references in each casethis Agreement to the “Financing”, so long “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 amendments would not be reasonably expected Financing required to result in an Adverse Effect consummate the Transactions on Financing. the Closing Date.
(b) Upon written request of the Company, Parent shall keep the Company informed apprised (as promptly as possible, and in reasonable detail 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 status foregoing, Parent shall give the Company prompt written notice and, in any event, within forty-eight (48) hours, (i) of Parentany 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 fee letter relating to the Commitment Letter (it being understood that the existence or 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 efforts prior written consent (such consent not to arrange be unreasonably withheld, or conditioned or delayed) if such replacement, amendment, supplement, modification or waiver (x) reduces the Debt 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. Any alternative, substitute or replacement debt financing obtained by otherwise expands, amends or modifies any 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 (as it may be replaced, amended, supplemented, modified or waived in accordance with this paragraph 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 (or titles with respect to such entities) that have not executed the Commitment Letter as of the date of this Agreement (it being understood that the aggregate commitments of the lenders party to 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 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 commitment letter and fee letter (which, in the case of 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 any related fee letter (which, in the case of a fee letter, may redact Permissible Redacted Terms) that is permitted hereunder.
(c) Prior to the Closing, the Company shall use its reasonable best efforts to provide, and to cause the Company Subsidiaries and 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 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 previous paragraph is 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 “Alternative 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.” For purposes of this Agreement, references or other certificates or documents and backup therefor and for legal opinions as may be reasonably requested by Parent (including any certificate or other document reasonably requested by Parent as backup for legal opinions to “Debt Financing” shall include be provided in connection with the financing transactions contemplated by any Alternative Financing Section 6.12) and references to “Debt Commitment Letter”otherwise reasonably facilitating the granting of guarantees and the pledging of collateral; provided that (A) none of the documents or certificates shall be executed and/or delivered except in connection with the Closing, “Debt Fee Letters”, “Debt Financing Documents”, “Debt Financing Entities”, “Debt Financing Sources”(B) the effectiveness thereof shall be conditioned upon, or become operative after, the occurrence of the Closing (in the case of each of the foregoing clauses (A) and (B), other than the execution of (1) the authorization letters set forth in Section 6.09(c)(vi) below, (2) the representation letters required by the Company’s auditors in connection with the delivery of “Financingcomfort letters” shall include set forth in Section 6.09(c)(ix) below, (3) the documents prepayment, termination or redemption notices set forth in Section 6.09(c)(v) below, (or commitments or financing sources, as applicable4) a customary solicitation agent agreement in connection with any Alternative Financing consent solicitation or change of control tender offer in respect of the 2021 Notes, the 2023 Notes or the 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 2021 Notes, the 2023 Notes or the 2025 Notes set forth in Section 6.12, (6) 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 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 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 permitted by subject to the expense reimbursement provision in the last sentence of this Section 7.186.09(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 such Alternative Financing shall be required to comply with the provisions of this Agreement in any event no later than three (3) Business Days prior to the same extent 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 Debt Financing. Notwithstanding anything Financing (or any person similarly situated) has reasonably requested at least ten (10) Business Days prior to the contrary contained Closing Date in this Agreement, in no event shall Parent or its Affiliates be required to pay any fees connection with such Financing or any interest rates customary high-yield non-convertible bonds in lieu of all or any portion of the Financing under applicable to the Alternative Financing in excess of those contemplated by the Debt Commitment Letter as in effect on the date hereof (“know your customer” and anti-money laundering rules and regulations, 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 PATRIOT Act and the MergerCDD Rule;
(v) delivering notices of prepayment, are not subject to, termination or conditioned on, Parent’s or Merger Sub’s receipt of financing.redemption within the time periods
Appears in 2 contracts
Sources: Merger Agreement (Wesco International Inc), Merger Agreement (Wesco International Inc)
Financing. (a) 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 Supernus and its Affiliates Subsidiaries shall use reasonable best efforts obtain customary payoff letters with respect to takethe Supernus Existing Loan Documents (the payoff of such facilities, or cause together, the “Debt Payoff”) and deliver drafts of such payoff letters 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 Debt Financing Indivior on or prior to the date that is three (3) Business Days prior to Closing Dateand executed copies of such payoff letters to Indivior on or prior to the date that is one (1) Business Day prior to Closing (or, in each case, such later date as Indivior may consent to), which payoff letters shall (i) set forth the aggregate amount required to be paid to the lenders and other parties to the Supernus Existing Loan Documents to pay the obligations thereunder (other than contingent indemnification obligations not yet payable) in full at Closing and the wire transfer instructions for the payment of such amount, (ii) confirm that upon the payment of the amounts set forth in clause (i) above, (x) all obligations of Supernus and its Subsidiaries under the Supernus Existing Loan Documents shall be paid in full (other than contingent indemnification obligations not yet payable), (y) all guarantees by Supernus and its Subsidiaries of, and any liens or security interests on the equity or assets of Supernus or any of its Subsidiaries securing, the obligations under the Supernus Existing Loan Documents shall be released and terminated in full and (z) the Supernus Existing Loan Documents shall be terminated in full (except for customary provisions that shall survive the payment in full of the obligations thereunder) and (iii) otherwise be in form and substance reasonably acceptable to Indivior, together with any other certificates, filings, notices and other documents reasonably requested by Indivior to effect or evidence the payoff and releases set forth in this sentence. Such actions Supernus shall, and shall include, but not be limited cause its applicable Subsidiaries to, using use their respective 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 to cause their respective Representatives to, provide cooperation reasonably requested by Indivior in connection with any Debt Commitment Letter and the definitive agreements relating to the Debt Financing)Payoff.
(b) From and after the date of this Agreement until Agreement, Indivior shall lead, direct and control the earlier arrangement, negotiation and syndication of the Effective Time or the termination of this Agreement in accordance with Article IXFinancing, Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or any portion of the Debt Financing becomes unavailable on the terms Indivior 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 Section 8.1 and Annex 1), then Parent and its Affiliates Supernus shall (iand shall each cause their respective Subsidiaries to) promptly notify the Company thereof cooperate in good faith and the reasons therefor, (ii) use their respective reasonable best efforts to cause Indivior to obtain alternative financing from the same or alternative Debt Financing Entities on terms and conditionsconditions determined by Indivior (which terms and conditions shall be reasonably acceptable to Supernus, taken as a wholeprovided that Supernus shall have an absolute consent right with respect to the amount, no less favorable to Parent than pricing, lead lender, arranger, agent or underwriter of the Financing Conditions, not involving and any conditions other material economic terms of the Financing; provided further that would constitute an Adverse Effect on Financing (as defined below) as compared to those the parties and terms set forth in the Debt Commitment Letter delivered to the Company on the date hereof, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 are acceptable to Supernus; provided further that, notwithstanding anything herein to the contrary, solely with respect to an Alternative Financing (including the market flex provisions (if any)as defined below) or agree Supernus shall not withhold consent to any term Alternative Financing which provides sufficient funding to consummate the Special Dividend if such Alternative Financing is (including any market flex term i) acceptable to Indivior in its sole discretion and (if any)ii) less favorable is either (x) on terms and conditions taken as a whole) whole no less advantageous to Parent the Combined Company than such term contained the Financing set forth in the Debt Commitment Letter as in effect on the date hereof or (including ii) taken as a whole, available on the market flex provisions most favorable terms and conditions available to Indivior, after utilizing its reasonable best efforts to procure Alternative Financing in accordance with Section 6.17(f), at the time such Alternative Financing is entered into (if anythe “Financing Consent Rights”)). Parent Without limiting the foregoing, Indivior shall, in consultation with Supernus and Merger Sub expressly acknowledge subject to the Financing Consent Rights, (i) identify and select the Financing Sources, (ii) determine the structure, amount and terms of the Financing, and (iii) conduct and control all negotiations and communications with the Financing Sources; provided that Indivior shall keep Supernus reasonably informed on a current basis of the status and material terms of the Financing and shall afford Supernus a reasonable opportunity to participate in material meetings, negotiations and communications with the Financing Sources.
(c) Subject to the Financing Consent Rights, Indivior shall be entitled to negotiate and agree the terms of the Financing on behalf of the parties in accordance with Section 6.17(b); provided that no commitment letter, fee letter, engagement letter, credit agreement, indenture, note purchase agreement or other definitive financing documentation relating to the Financing shall be executed by, or be binding on or enforceable against, Supernus or any of its Subsidiaries (or, following the Effective Time, the Combined Company) unless Supernus has approved and executed such documentation, such approval not to be unreasonably withheld, conditioned or delayed (it being understood that it shall not be unreasonable for Supernus to withhold approval of terms in accordance with the Financing Consent Rights); provided that, for the avoidance of doubt, the Commitment Letter and the Fee Letter are hereby approved by Indivior in all respects with such approval evidenced by Indivior’s execution of this Agreement.
(d) Indivior and Supernus shall share all fees, costs and expenses of the Financing in proportion to the Supernus Fee Allocation Percentage and the Indivior Fee Allocation Percentage; provided that no such fees, costs or expenses shall be incurred, and no fee or engagement letter shall be entered into, without the prior written consent of both parties; provided, further that, for the avoidance of doubt, the Fee Letter is hereby approved by each party hereto in all respects with such approval evidenced by each such parties’ execution of this Agreement.
(e) Each party shall, and shall cause its Subsidiaries and Representatives to, use reasonable best efforts to provide (and to cause their obligations and their respective Subsidiaries’, officers, directors, employees, accountants, auditors and other representatives to use commercially reasonable efforts to provide) such cooperation in connection with the arrangement of the Financing as is reasonably requested and mutually agreed (including participating in a reasonable number of lender meetings and furnishing information reasonably required for the Financing), it being understood that no such cooperation shall unreasonably interfere with the ongoing operations of either party.
(f) If any portion of any Financing becomes unavailable, Indivior shall lead, and the parties shall, use their respective reasonable best efforts to arrange and obtain replacement financing (“Alternative Financing”) on the same basis as set forth in this Section 6.17 (subject to the Financing Consent Rights), and any such Alternative Financing shall constitute a Financing for all purposes of this Agreement.
(g) Indivior shall keep Supernus reasonably informed on a current basis and in reasonable detail of the status of the efforts to obtain the Financing and to satisfy the conditions thereof, including providing copies of any material amendment, modification or replacement thereof. Notwithstanding the foregoing, in no event shall either party be under any obligation to disclose any information pursuant to this clause (g) that would waive the protection of attorney-client or similar privilege to the extent such privilege is asserted in good faith, but such party shall use reasonable best efforts to disclose such information in a way that would not jeopardize such privilege.
(h) Without limiting the generality of the foregoing, from and after the date of this Agreement, including their obligations to consummate and through the Offer earlier of the Closing and the Mergerdate on which this Agreement is terminated in accordance with Article VIII, are not subject Indivior and Supernus shall, and shall cause each of its Subsidiaries and use reasonable best efforts to cause its and their respective Representatives to, use their respective reasonable best efforts to provide (and to cause their and their respective Subsidiaries’, officers, directors, employees, accountants, auditors and other representatives to use commercially reasonable efforts to provide) such customary cooperation as is reasonably requested by the other party in the arrangement and consummation of the Financing, in each case, upon reasonable written request of the requesting party, including using reasonable best efforts to:
(i) cause the management team of Supernus or conditioned Indivior, as applicable, to participate in reasonable number of requested meetings (including customary one-on-one meetings and conference calls with the parties acting as lead arrangers, Parentagents, underwriters or initial purchasers and prospective lenders or investors and Supernus’ or Indivior’s senior management and Representatives, as applicable) and due diligence sessions, drafting sessions and similar presentations to and with prospective lenders, investors and rating agencies reasonably required in connection with the Financing, in each case upon reasonable and advance written notice and at mutually agreed upon dates and times during normal business hours;
(ii) provide reasonable assistance with the preparation of (1) materials for rating agency presentations and (2) bank information memoranda (including a public-side version thereof), lender and investor presentations, offering memoranda, registration statements, prospectuses, and other similar documents and materials in each case, as required or Merger Subcustomary in connection with a financing of the type contemplated by the Financing and reasonably requested by Indivior or Supernus, as applicable, and limited to information to be contained therein with respect to the other party and its Subsidiaries;
(iii) assist with the preparation of any definitive documentation and the schedules and exhibits thereto contemplated or required by the Financing, and any other customary definitive documents relating to the Financing, including any certificates and schedules related thereto;
(iv) assist with the preparation of customary pro forma financial statements to the extent reasonably requested by any of the Financing Sources;
(v) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders and containing a customary representation that such information does not contain a material misstatement or omission and containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about Supernus or Indivior, as applicable, or its Subsidiaries or their respective securities, but only to the extent any confidential information memorandum or presentation to which such authorization letters relate contains customary disclaimers to Supernus or Indivior, as applicable, its Affiliates, and their respective Representatives with respect to the responsibility for the use or misuse of the contents of such confidential information memorandum or presentation to which such authorization letter relates;
(vi) provide Indivior or Supernus, as applicable, at least five (5) Business Days prior to the Closing Date (to the extent requested in writing at least ten (10) Business Days prior to the Closing Date) with all documentation and other information with respect to Supernus or Indivior, as applicable, and its Subsidiaries as is reasonably requested in writing by the other party that is required in connection with the Financing in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, Title III of Pub. L. 107-56 (the “PATRIOT Act”), the Office of Foreign Assets Control regulations and the FCPA;
(vii) cooperate with the due diligence of the Financing Sources, to the extent customary and reasonable, and as promptly as reasonably practicable upon reasonable request by Indivior or Supernus, as applicable, (I) furnish the other party and its Financing Sources, as applicable, with such financial statements as are required by the terms of the Committed Financing (the “Required Financial Information”), (II) periodically update any Required Financial Information provided to Indivior or Supernus, as applicable, as may be necessary so such Required Financial Information is compliant and (III) furnish to Indivior or Supernus, as applicable, such other financial information with respect to the other party and its Subsidiaries as is historically prepared in the ordinary course by, and readily available to, the other party and its Subsidiaries;
(viii) cause Supernus’ or Indivior’s, as applicable, independent public accountants to provide, consistent with customary practice for financings similar to the Financing or the requirements or Regulation S-K: (A) customary auditor consents (including consents of accountants for use of their reports in any materials (including any registration statement) relating to the Financing) and/or the other party’s receipt filing and reporting obligations with the SEC, (B) customary comfort letters (including “negative assurance” comfort and change period comfort) with respect to financial information relating to Supernus or Indivior, as applicable, and its Subsidiaries as reasonably requested by the other party or the Financing Sources and (C) participation in a reasonable number of financingaccounting due diligence sessions;
(ix) execute and deliver as of and subject to the occurrence of the Closing (and solely with respect to directors and officers that remain in the same capacity after giving effect to the Closing) any credit agreements, indentures, supplemental indentures, notes, guarantees, purchase agreements, underwriting agreements, pledge and security documents (including reasonable assistance with the preparation of any customary schedules thereto) borrowing requests, fee letters, other definitive financing documents, or other certificates or documents as may be reasonably requested by Indivior or Supernus, as applicable, including customary certificates of the chief financial officer (or other executive officer) of such other party with respect to solvency matters in the form set forth as an exhibit to the definitive documentation evidencing the Financing and otherwise customarily required to facilitate the pledging of collateral (including, but not limited to, using commercially reasonable efforts to arrange for the delivery of any original stock certificates or trust certificates and related powers, any original promissory notes and related powers, in each case, at or promptly following the Closing); and
(x) taking all corporate and other organizational actions reasonably requested by Indivior or Supernus, as applicable, necessary to permit the Financing as of, and subject to the occurrence of, the Closing Date (and solely with respect to directors and officers that remain in the same capacity after giving effect to the Closing).
(i) The parties hereby consent to the customary use of its and its Subsidiaries’ names, logos and trademarks in connection with the Financing; provided that such names, trademarks and logos are used solely in a manner that does not, is not intended to and is not reasonably likely to harm or disparage any party or any of their respective Subsidiaries, such names, trademarks and logos or the reputation or goodwill of such party or any of its Subsidiaries.
(j) Solely in the event that: (i) the Closing has not occurred by the later of (x) the 150th day following the date hereof and (y) three (3) Business Days after the time of satisfaction of all conditions to Closing (other than those conditions that by their terms are to be satisfied at the Closing); (ii) the Parties have complied in all material respects with the provisions of this Section 6.17; (iii) despite the Parties’ compliance with the provisions of this Section 6.17 the Financing is unavailable and no Alternative Financing is available; and (iv) all of the conditions set forth in Section 7.1 and Section 7.2 shall have been satisfied or waived (other than those conditions that by their terms are to be satisfied at the Closing, each of which would be capable of being satisfied if the Closing were to occ
Appears in 2 contracts
Sources: Merger Agreement (Indivior Pharmaceuticals, Inc.), Merger Agreement (Supernus Pharmaceuticals, Inc.)
Financing. (a) 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 use 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 Debt Financing on or prior to the Closing 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 2 contracts
Sources: Agreement and Plan of Merger (Herc Holdings Inc), Agreement and Plan of Merger (Herc Holdings Inc)
Financing. (a) From Parent has delivered to the Company true, complete and correct copies of (i) the fully executed commitment letters dated as of the date of this Agreement until (together with all exhibits and schedules thereto and any fee letters related thereto, the earlier “Commitment Letters”) from the Financing Entities party thereto pursuant to which such Financing Entities have agreed, subject only to the terms and conditions thereof, to provide respective financing in the amounts set forth therein, and (ii) all fee letters related thereto, which Commitment Letters and fee letters may be redacted as to fee amounts, “flex terms”, other economic terms and other provisions (including any dates related thereto), in each case, that are customarily redacted in connection with transactions of this type so long as no such redaction covers terms that could reduce the amount of the Effective Time Financing below the amount required to satisfy the Financing Amount or adversely affect the conditionality, enforceability, availability or termination of the Financing. The financing contemplated by the Commitment Letters is collectively referred to in this Agreement as the “Financing.”
(b) Except as expressly set forth in accordance with Article IXthe Commitment Letters, there are no conditions precedent to the obligations of the Financing Entities to provide the Financing, or any contingencies that would permit the Financing Entities to reduce the aggregate amount of the Financing. As of the date of this Agreement, Parent does not have any reason to believe that it will be unable to satisfy on a timely basis all terms and its Affiliates shall use reasonable best efforts to take, or cause conditions 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 satisfied by it in the Debt Financing and to consummate the Debt Financing Commitment Letters on or prior to the Closing Date, nor does Parent have knowledge that any of the Financing Entities will not perform its obligations thereunder. 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 There are no side letters or other modification agreements, contracts or waiver that arrangements of any kind to which Parent or Merger Sub is not prohibited by clause (d) below); (ii) satisfy, or obtain a waiver thereof, on a timely basis all Financing Conditions party relating to the extent within funding of the control full amount of Parent and its Affiliates; (iii) negotiate, execute and deliver Debt the Financing Documents to the extent required to pay fund the Required Financing 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 than as compared to those expressly set forth in the Debt Commitment Letters and customary engagement and fee letters (in each case, the terms of which (i) do not reduce the aggregate amount of the Financing below the amount contemplated by the Commitment Letter delivered to or (ii) could not adversely affect the Company on availability, enforceability or conditionality of 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).
(bc) From Assuming (x) the date accuracy in all material respects of the representations and warranties set forth in Article III and (y) the performance by the Company and its Subsidiaries of the covenants and agreements contained in this Agreement until in all material respects, the earlier Financing, when funded in accordance with the Commitment Letters (including giving effect to any “flex” provision in the Commitment Letters (including with respect to fees and original issue discount)), together with Parent’s other available sources of funds, shall provide Parent with cash proceeds on the Effective Time or the termination Closing Date sufficient to enable Parent to perform all of Parent’s payment obligations under this Agreement and the Commitment Letters, including to pay the aggregate Merger Consideration and all amounts required in respect of Company Awards in accordance with Article IXII, Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation other amounts required to be paid by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate principal amount of such alternative financing to be funded on the Closing Date in connection with the consummation of the Transactions (including any fees and expenses of or impose additional conditions precedent to the funding payable by Parent or Merger Sub and any repayment of such alternative financing any Company indebtedness on the Closing DateDate in connection with the Transactions) (such amounts, collectively, the “Financing Amount”), and there is no restriction on the use of such cash proceeds for such purposes.
(d) From Each of the obligations set forth in the Commitment Letters constitutes the legal, valid, binding and enforceable obligation of Parent and, to the knowledge of Parent, all the other parties thereto. As of the date of this Agreement until Agreement, no event has occurred which (with or without notice, lapse of time or both) would constitute a default, breach or failure to satisfy a condition by Parent under the earlier terms and conditions of the Effective Time or the termination of this Agreement in accordance with Article IXCommitment Letters, without the prior written consent and, as 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 Parent has no reason to “Debt Financing” shall include believe that the financing contemplated by Financing will not be available to Parent on the date of the Closing in an amount necessary to satisfy the Financing Amount. Parent has paid in full any Alternative Financing and references all commitment fees or other fees required to “Debt be paid pursuant to the terms of the Commitment Letter”Letters on or before the date of this Agreement, “Debt Fee Letters”and will pay in full any such amounts due on or before the Closing Date. Except in accordance with the terms hereof, “Debt Financing Documents”the Commitment Letters have not been modified, “Debt Financing Entities”, “Debt Financing Sources”, amended or “Financing” shall include the documents (or commitments or financing sourcesaltered and, as applicable) of the date of this Agreement, none of the respective commitments thereunder have been terminated, reduced, withdrawn or rescinded in connection with any Alternative Financing respect, and, to the extent permitted by knowledge of Parent, as of the date of this Section 7.18Agreement, and such Alternative Financing shall be required to comply with the provisions of no termination, reduction, withdrawal or rescission thereof is contemplated.
(e) Notwithstanding anything in this Agreement to the same extent as the Debt Financing. Notwithstanding anything to the contrary contained in this Agreementcontrary, in no event shall Parent the receipt or its Affiliates be required to pay availability of any fees funds 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 financing (including the market flex provisions (if any)Financing) by Parent, Merger Sub or agree any of their respective affiliates be a condition 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, of Parent’s or Merger Sub’s receipt of financingobligations under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Beazer Homes Usa Inc), Merger Agreement (Dream Finders Homes, Inc.)
Financing. (a) From Subject to the date terms and conditions of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXAgreement, Parent and its Affiliates shall use its commercially 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 on the terms and conditions (including “market flex” provisions) described in the Debt Financing Commitment, including using its commercially reasonable efforts to (i) comply with its obligations under the Debt Financing Commitment and any definitive agreements related thereto (the “Debt Financing Documents”), (ii) maintain in effect the Debt Financing Commitment, (iii) negotiate and enter into Debt Financing Documents on a timely basis on terms and conditions (including the “market flex” provisions) contained in the Debt Financing Commitment or otherwise not materially less favorable with respect to conditionality to Parent in the aggregate than those contained in the Debt Financing Commitment, (iv) satisfy on a timely basis all conditions contained in the Debt Financing Commitment that are applicable to Parent and within its control, including the payment of any commitment, engagement or placement fees required as a condition to the Debt Financing and (v) if all conditions to the Debt Financing Commitment have been satisfied, cause the Commitment Parties to consummate the Debt Financing on at or prior to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: Date (i) comply with and maintain in effect the Debt Commitment Letter (subject to any amendment, supplement, replacement, substitution, termination or other modification or waiver it being understood that it is not prohibited by clause (d) below); (ii) satisfy, or a condition to Closing under this Agreement for Parent to 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 upon having knowledge of any material breach, repudiation or threatened material breach or repudiation by any party to Commitment Party under the Debt Commitment Letter of which Parent Financing Documents or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation termination of any confidentiality obligation.
(c) In 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 Documents. 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 this Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, without the prior written consent of the Company6.16, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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 maynot, without the prior written consent of the Company, amend, modify, supplementsupplement or waive any of the conditions or contingencies to funding contained in the Debt Financing Documents or any other provision of, or remedies under, the Debt Financing Documents (other than in accordance with the “market flex” provisions), in each case to the extent such amendment, modification, supplement or waiver (i) would reasonably be expected to have the effect of (A) adversely affecting the ability of Parent to timely consummate the Merger and other transactions contemplated by this Agreement or (B) delaying the Closing or (ii) contains conditions and other terms that would reasonably be expected to affect the availability of the Debt Financing that are more onerous, taken as a whole, than those conditions and terms contained in the Debt Financing Commitment as of the date hereof; provided that notwithstanding any other provision of this Agreement, Parent shall be entitled from time to time to (x) amend, restate, assignreplace, substitute supplement or replace otherwise modify, or waive any of its rights under, the Debt Financing Commitment Letteror substitute other financing for all or any portion of the Debt Financing from the same or alternative financing sources, including and (1y) to add and appoint additional amend, restate, replace, supplement or otherwise modify the Debt Financing Commitment for the purpose of adding agents, co-agents, lenders, arrangers, bookrunners, underwriters, agents, lenders and similar Debt Financing Entities bookrunners or other persons that have not executed the Debt Financing Documents Commitment as in effect on of 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 Financinghereof, in each case, subject to subclauses (i) and (ii) above. Upon any such amendment, supplement or modification, in accordance with the terms of this Section 6.16(a), the term “Debt Financing Commitment” shall mean for all purposes of this Agreement the Debt Financing Commitment as so long as amended, supplemented or modified. Parent shall promptly deliver to the Company true and complete copies of any such amendments amendment, supplement or modification (subject, in the case of any fee letter or engagement letter, to customary redactions (none of which redacted terms would not reasonably be reasonably expected to result in an Adverse Effect on Financing. Upon request adversely affect the principal amount or availability 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 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 2 contracts
Sources: Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Cincinnati Bell Inc)
Financing. (a) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXParent, Parent Merger Sub and its Affiliates Merger LLC shall use reasonable best efforts to take, or cause to be taken, all actions, and use reasonable best efforts to do, or cause to such actions as may be done, all things reasonably necessary or advisable, to arrange and obtain the Debt Financing and to consummate the Debt Financing on or prior to substantially the Closing Date. Such actions shall includeterms and conditions described in the Debt Commitment Letter, but not be limited to, using reasonable best efforts to: including (i) comply to negotiate and enter into the definitive agreements 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, respect thereto 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 and conditions described in the Debt Commitment Letter (including including, as necessary, 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 contained in the Debt Commitment Letter delivered to Fee Letter) by the Company on the date hereof; Closing Date and (ivii) in to satisfy or obtain the event that the Offer Conditions have been satisfied or waived orwaiver of, upon funding would be satisfiedon a timely basis, consummate the Debt Financing (including by instructing the Debt Financing Sources all conditions to fund obtaining the Debt Financing in accordance with the Debt Commitment Letter, terms thereof and enforcing Parent’s rights under to comply with all of the obligations applicable to Parent pursuant to the Debt Commitment Letter and the definitive agreements relating 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).
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 (bincluding paying all commitment fees when due, for repaying or refinancing the Credit Agreement or other indebtedness of the Company) From 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 this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXClosing. Parent, Parent Merger Sub and its Affiliates Merger LLC shall give the Company prompt notice of any material breach, repudiation breach (or threatened material breach breach) or repudiation default (or threatened default) by any party to the Debt Commitment Letter or the definitive agreements related thereto of which Parent any of Parent, Merger Sub or its Affiliates 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 aware; 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 none fees, “market flex” and other economic terms which do not affect the amount, availability or conditionality of Parent 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 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 be required to disclose or provide any such information, the disclosure Company with prompt written notice of which, in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation receipt of any confidentiality obligationwritten 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) In Parent shall have the event right to substitute in equivalent amounts commitments in respect of other financing for 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and any cash on hand, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) and other bona fide third party financing sources of immediately available funds, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does alternative sources would not extend to any terms that would reasonably be expected to reduce (i) adversely affect the aggregate principal amount ability or likelihood 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 IXParent, without the prior written consent of the Company, Parent Merger Sub 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 Merger LLC timely consummating the transactions contemplated by this Agreement, including (ii) make the Offer and timely funding of the Merger, Debt Financing or the satisfaction of the conditions to obtaining the Debt Financing less likely to occur or (Diii) materially adversely affect Parent’s ability to consummate the transactions contemplated by this Agreement, including the Offer and the Merger or (E) materially adversely impact the ability of Parent Parent, Merger Sub or any of its Affiliates’ Merger LLC to enforce their respective its rights against the Debt Financing Sources or any of the other parties to the Debt Commitment Letters Letter or the definitive agreements with respect relating thereto (clauses 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 provide to Parent and Merger Sub, and shall cause each of its Subsidiaries to use its reasonable best efforts to provide, 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 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) through furnishing to Parent as promptly as reasonably practicable, and in no event later than (E), 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 an “Adverse Effect on Financing”); provided that Parent may, without the prior written consent fiscal year of the Company, amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter, including unaudited balance sheets and income and cash flow statements (1in each case without footnotes) 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 Acquired Companies for such fiscal quarter or fiscal year and (4y) increase 60 calendar days after the aggregate amount end of each fiscal year of the Debt FinancingCompany, audited balance sheets and income and cash flow statements of the Acquired Companies for such fiscal year, 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 reasonably required by this Section 7.18, Parent to prepare pro forma financial statements of the type required by Regulation S-X and such Alternative Financing shall be required Regulation S-K promulgated under the Securities Act to comply with syndicate or complete the provisions offering(s) of this Agreement to the same 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 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 effect any event no later than 90 calendar days after the 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 and execution and delivery of customary representation letters in connection with bank information memoranda;
(vii) taking corporate actions, subject to the occurrence of the Effective Time, reasonably requested by Parent to permit the consummation of the Available Financing and 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 Parent in connection with the Available Financing; provided that no obligation of any Acquired Company under any such agreements or amendments shall be effective until the Effective Time;
(ix) 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 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 Closing Date of all indebtedness contemplated by the Debt Commitment Letter as in effect to be paid off, discharged and terminated on the date hereof Closing Date;
(xii) as soon as practicable, furnishing written notice to Parent if the Company shall have knowledge of (A) any facts as a result of which a restatement of any financial statements for such financial statements to comply 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, all documentation and 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 market flex provisions USA PATRIOT Act of 2001 and requested by Parent at least ten (if any10) Business Days prior to the Closing Date; provided, however, that, no obligation of any of the Acquired Companies under any agreement, certificate, document or 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 to pay any commitment or other fee or incur any other liability in connection with the Available Financing prior to the Effective Time. Notwithstanding the foregoing, (1) none of the Acquired Companies shall be required to pay any commitment or other similar fee or incur prior to the Closing Date any other liability or obligation in connection with the Debt Financing, (2) none of the Acquired Companies nor their respective officers, directors or employees shall be required to execute or enter into or perform any agreement with respect to the 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)). 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 ontake any actions which would violate its organizational documents or applicable laws and (3) nothing shall obligate any of the Acquired Companies to provide, Parent’s or Merger Sub’s receipt of financing.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) From Subject to the date terms and conditions of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXSection 5.14, Parent and its Affiliates Newco shall use 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 Debt Financing on or prior to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: (i) cause the conditions and comply with and maintain the obligations that are set forth in effect the Debt Newco Commitment Letter applicable to, and within the control of, or that require the cooperation of, Newco to be fulfilled (subject to any amendmentor waived, supplementif deemed advisable by Newco) in a timely fashion in accordance with its terms, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below); (ii) satisfymaintain the Newco Commitment Letter in effect until the earlier of the initial funding of the Newco Financing or the date that the Newco Financing Agreements (as defined below) become effective, or obtain a waiver thereof, on a timely basis all Financing Conditions to the extent within the control of Parent and its Affiliates; (iii) negotiatenegotiate definitive agreements with respect thereto, execute on the terms 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 conditions contained therein (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 theretoprovisions) or on such other terms acceptable to Parent that would not constitute an Adverse Effect on be prohibited by Section 5.14(e) (the “Newco Financing as compared to those set forth in the Debt Commitment Letter delivered to the Company on the date hereof; Agreements”) and (iv) in if all conditions precedent under the event that Newco Commitment Letter or the Offer Conditions Newco Financing Agreements have been satisfied or waived or, upon funding would be satisfied, consummate on the Debt Financing (including by instructing Closing Date, cause the Debt Newco 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 Newco Financing).
(b) From Subject to the date terms and conditions of this Agreement 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 Effective Time initial funding of the Athena Financing or the termination occurrence of this Agreement in accordance the Amendment Effective Date, (iii) negotiate definitive agreements with Article IX, Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party respect to the Debt 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 of which Parent or its Affiliates becomes aware; provided that none of Parent or Merger Sub shall be required the Athena Financing Agreements have been satisfied cause the Athena Financing Sources to disclose or provide any such information, consummate the disclosure of which, in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligationAthena Financing.
(c) In Athena and Newco shall each give the other prompt written notice (i) of 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 their respective Commitment Letters or their respective Financing Agreements, (ii) of the receipt of any written notice of any actual or threatened withdrawal, repudiation or termination of either Financing by any of the respective Financing Sources, (iii) of the receipt of any written notice of any material dispute or disagreement between or among any of 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 Debt Newco Financing becomes unavailable 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 Debt Newco Commitment Letter (including or 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 Adverse Effect on Financing (as defined below) as compared to those set forth in the Debt Athena Commitment Letter delivered to the Company on the date hereof, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required AmountLetter, as promptly applicable, or the Newco Financing Agreements or the Athena Financing Agreements, as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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 Dateapplicable.
(d) From the date Newco and Athena shall keep one another informed upon reasonable request and in reasonable detail, as soon as reasonably practicable (but in any event within three Business Days upon receipt of this Agreement until the earlier such reasonable request) of the Effective Time status of their efforts to arrange the Newco Financing and the Athena Financing, as applicable. In addition, Athena shall keep Newco informed upon reasonable request and in reasonable detail, as soon as reasonably practicable (but in any event within three Business Days upon receipt of such reasonable request) of the status of the effectiveness of the Athena Credit Agreement Amendment. The terms and conditions of (i) the Newco Financing Agreements shall be reasonably satisfactory in form and substance to Athena and (ii) the Athena Financing Agreements and any Athena Credit Agreement Amendment, in each case to the extent 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 termination Newco Commitment Letter or any of this Agreement the Newco Financing Agreements in accordance with Article IX, any material respect without obtaining the prior written consent of the CompanyAthena (such consent not to be unreasonably withheld, Parent and its Affiliates shall not amendconditioned or delayed) (it being understood that, modifyamong other things, supplement, restate, assign, substitute or replace the Debt Commitment Letter or any Debt Financing Document if such amendment, modification, supplementreplacement, restatement, assignment, substitution waiver or replacement would (A) impose additional conditions precedent or expand upon the conditions precedent change 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 or (E) materially adversely impact the ability of Parent Newco or any of its Affiliates’ affiliates to enforce their respective rights against approve the Debt selection of financial institutions or other entities that will participate as term lenders under the Newco Commitment Letter or the Newco Financing Sources or any Agreements, and the allocations of the other parties commitments to the Debt Commitment Letters or the definitive agreements with respect thereto (clauses (A) through (E)lenders thereunder, 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions an amendment, modification, replacement, waiver or change of this Agreement to the same extent as the Debt Financinga material provision in a material respect). Notwithstanding anything to the contrary contained in this Agreementset forth herein, in no event shall Parent Newco may modify, supplement, or its Affiliates be required to pay any fees amend the Newco Commitment Letter or any interest rates applicable of the Newco Financing Agreements, to add lead arrangers, bookrunners, syndication agents, documentation agents, lenders or similar entities that have not executed the Alternative Financing in excess of those contemplated by the Debt Newco Commitment Letter as in effect on of the date hereof hereof. In such event, the term “Newco Commitment Letter” as used herein shall be deemed to include such new or amended commitment letters (including all exhibits, schedules, and attachments thereto) and fee letters entered into in accordance with this Section 5.14(e), the market flex provisions (if anyterm “Newco Financing” as used herein shall be deemed to include any substitute financing obtained in accordance with this Section 5.14(e)) 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, term “Newco Financing Agreements” shall be deemed to include the new or conditioned on, Parent’s or Merger Sub’s receipt of financingamended definitive agreements with respect to the Newco Financing entered into in accordance with this Section 5.14(e).
Appears in 2 contracts
Sources: Merger Agreement (Ecolab Inc.), Merger Agreement (Apergy Corp)
Financing. (a) From Without limiting any of the date obligations of Sellers under Section 5.5 of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXAgreement, Parent and its Affiliates Acquiror shall use reasonable best efforts to take, or cause to be taken, all actions, 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 Debt Financing on or prior to the Closing Date. Such actions shall include, but not be limited toall things necessary, proper or advisable to arrange the Financing on the terms and conditions described in the Commitment Letters (including the “flex provisions” in the related fee letter), including using reasonable best efforts to: , prior to the Closing Date, (i) comply with and maintain in effect the Debt Commitment Letter (subject to any amendment, supplement, replacement, substitution, termination or other modification or waiver until the earlier of the date that is not prohibited by clause (d) below); (ii) satisfy, or obtain a waiver thereof, the Closing has occurred and the date that it has been terminated in accordance with its terms and satisfy on a timely basis all conditions applicable to Acquiror obtaining the 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; Letters, (ii) negotiate 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 enter into definitive agreements relating with respect thereto that are in form and substance reasonably satisfactory 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 Acquiror and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter (including any related flex provisions) or on other terms in 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 aggregate not less favorable to Parent than Acquiror and the Financing ConditionsCompanies, not involving any conditions that would constitute an Adverse Effect on Financing in the aggregate, (as defined belowiii) as compared timely prepare the necessary offering circulars, private placement memoranda, or other offering documents or marketing materials with respect to those set forth in the Debt Financing, and (iv) assist with the syndication activities contemplated by the Debt Commitment Letter delivered to the Company on the date hereof, Letter. Acquiror shall give Sellers prompt notice (A) of any actual or threatened breach or default (or any event or circumstance that, when taken together with the portion or without notice, lapse of the Debt Financing that remains available and any cash on handtime or both, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) and other sources of immediately available funds, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate principal amount of such alternative financing give rise to be funded on the Closing Date any breach or impose additional conditions precedent default) by any party to any Commitment Letter or definitive document related to the funding Financing of such alternative financing on which Acquiror becomes aware and which would reasonably be expected to result in Acquiror not receiving the Closing Date.
Debt Financing or Equity Financing at the Closing, (dB) From the date of this Agreement until the earlier if and when Acquiror becomes aware, or receives oral or written notice, that any portion of the Effective Time or Financing contemplated by any Commitment Letter may not be available to consummate the transactions contemplated hereby, and (C) of any termination of this Agreement any Commitment Letter. Acquiror shall keep Sellers informed on a reasonably current basis in accordance reasonable detail of the status of their efforts to arrange the Financing. Acquiror shall (1) comply in all material respects with Article IXeach Commitment Letter, and (2) except as contemplated by the Commitment Letters, not permit, without the prior written consent of the CompanySellers, Parent and its Affiliates shall not amendany amendment or modification to be made to, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter or any Debt Financing Document waiver of any provision or remedy under the Commitment Letters if such amendment, modification, supplement, restatement, assignment, substitution modification or replacement waiver would (A) impose additional conditions precedent or expand upon the conditions precedent to the funding of the Debt Financing, (Bx) reduce the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or the net cash proceeds available from original issue discount of the Debt Financing to an amount that unless the Equity Financing is less than 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 fundsincreased by a corresponding amount), (Cy) prevent impose new or materially additional conditions, or otherwise amend, modify or expand any conditions, to the receipt of the Debt Financing in a manner that would reasonably be expected to (I) delay or prevent the Closing, (II) make materially less likely the funding of the Debt Financing (or the satisfaction of the Financing Conditionsconditions to obtaining the Debt Financing) on the Closing Date or materially impair, delay or prevent the consummation of the transactions contemplated by this Agreement, including the Offer and the Merger, (D) materially adversely affect Parent’s ability less likely to consummate the transactions contemplated by this Agreement, including the Offer and the Merger occur or (EIII) materially adversely impact the ability of Parent or any of its Affiliates’ Acquiror to enforce their respective its rights against the Debt Financing Sources or any of the other parties to the Debt Commitment Letters Financing Commitments or the definitive agreements with respect thereto thereto, the ability of Acquiror to consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby (clauses (A) through (E), each an “Adverse Effect on Financing”); provided that the existence or exercise of “flex provisions” and/or the addition of any additional arranger, lead arranger, agent or other Lender (if the addition of such additional parties, individually or in the aggregate, would not be reasonably likely to (X) delay or prevent the 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 definitive agreements with respect thereto, the ability of Parent mayto consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby) shall not constitute an amendment, without modification or waiver of the Commitment Letters requiring the prior written consent of the Company, amend, modify, supplement, restate, assign, substitute Sellers hereunder 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 otherwise constitute 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same extent as the Debt Financingbreach 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 Parent the “reasonable best efforts” of Acquiror be deemed or its Affiliates be required 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 “flex provisions”) provided on the date of this Agreement, (C) waive any terms or conditions of this Agreement, (D) 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 Letters (including the market flex provisions (if any)whether to secure waiver of any conditions contained therein or otherwise) or agree (E) enforce their rights against counterparties to any term (including any market flex term (if any)) less favorable (taken as the Commitment Letters except with respect to a whole) to Parent than such term contained in draw down of the proceeds of the Debt Commitment Letter Financing as provided in effect on clause (b) of the date hereof (including 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 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 financingClosing occurs.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Gates Global Inc.), Stock Purchase Agreement (Pinafore Holdings B.V.)
Financing. (a) From Parent and Acquisition Sub shall use their commercially reasonable efforts to obtain the date of this Agreement until the earlier proceeds of the Effective Time or Financing on the termination of this Agreement terms and conditions described in accordance with Article IXthe Commitment Letter, Parent Consent Letter and its Affiliates shall use Parent Commitment Letter and to obtain the funds contemplated by the Equity Commitment (and to contribute such funds to the Company), including using commercially 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 Debt Financing on or prior (A) negotiate definitive agreements with respect to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: (i) comply Financing consistent with the terms and maintain conditions contained in effect the Debt Commitment Letter and (subject to any amendment, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (dB) below); (ii) satisfy, or obtain a waiver thereof, satisfy on a timely basis all Financing Conditions to conditions in such definitive agreements the extent satisfaction of which is within the control of Parent or Acquisition Sub. Parent and its Affiliates; (iii) negotiateAcquisition Sub shall use their commercially reasonable efforts to comply with their respective obligations, execute and deliver Debt Financing Documents to enforce their respective rights, under 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, the Parent Consent Letter and enforcing Parent’s rights under the Debt Parent Commitment Letter and the definitive agreements relating shall cause RHJI 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 comply with Article IX, Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 obligations 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 FinancingEquity Commitment. Upon request of the Company, Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of Parent’s its efforts to arrange obtain the Debt 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. Any alternative, substitute including providing reasonably required information relating to the Company and the Company Subsidiaries to the financial institution or replacement debt financing obtained 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 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 the Financing; provided, however, that no obligation of the Company or any Alternative Financing to the extent permitted by this Section 7.18Company Subsidiary under any such certificate, and such Alternative Financing document or instrument shall be required to comply with effective until the provisions Effective Time and none of this Agreement to the same extent as the Debt Financing. Notwithstanding anything to the contrary contained in this Agreement, in no event Company or any Company Subsidiary shall Parent or its Affiliates be required to pay any fees commitment or other similar fee or incur any interest rates applicable other liability in connection with the Financing prior to the Alternative Effective Time. 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 and the other Transaction Agreements, then Parent shall promptly notify the Company and Parent and Acquisition Sub shall use their commercially reasonable efforts to obtain alternative financing on terms that are no less favorable to Parent and Acquisition Sub than those set forth in excess of those the Commitment Letter, Parent Consent Letter or Parent Commitment Letter, as applicable, and in the same amounts as contemplated by the Debt Commitment Letter as in effect on the date hereof (including for working capital purposes following the market flex provisions (if any)Closing) or agree to any term Parent Commitment Letter, as applicable (including any market flex term (if anythe "Alternative Financing")) less favorable (taken as ; provided that no such Alternative Financing shall require a whole) to Parent greater cash equity commitment than such term contained in that contemplated by 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 financingEquity Commitment.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Metaldyne Corp), Agreement and Plan of Merger (Credit Suisse/)
Financing. (a) From During the period commencing on the date of this Agreement until hereof and terminating on the earlier to occur of the Effective Time or Closing and the termination of this Agreement pursuant to and in accordance with Article IXVIII, each of Parent and its Affiliates Merger Sub shall use their reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisableadvisable to arrange, to arrange obtain and obtain consummate the Financing on the terms and conditions described in or contemplated by the Commitment Letters (including complying with any request requiring the exercise of so-called “market flex” provisions in the Fee Letter in connection with the Debt Financing and to consummate the Debt Financing on or prior to the Closing Date. Such actions shall includeFinancing), but not be limited to, including using reasonable best efforts to: :
(i) comply with and maintain in full force and effect the Debt Commitment Letter Letters (subject to any amendmentParent’s right to replace, restate, supplement, replacementmodify, substitutionassign, termination substitute or other modification or waiver that is not prohibited by clause (d) belowamend the Commitment Letters in accordance herewith); ;
(ii) satisfy, or obtain a waiver thereof, on a timely basis all Financing Conditions negotiate and execute definitive agreements with respect 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 applicable thereto) ), or on such other terms acceptable that, taken as a whole, (i) would not reduce the aggregate amount of the Financing available to be funded at the Closing below the amount required to fund the Financing Uses (taking into account any increase in any other Financing and other available sources) and (ii) are no less favorable in the aggregate to Parent that would not constitute an Adverse Effect on Financing as compared to those and Merger Sub than the terms set forth in the Debt Commitment Letter delivered to the Company as in effect on the date hereof; of this Agreement (as determined by Parent in its reasonable judgment) (including any “market flex” provisions applicable thereto), in each case, which terms shall not impose, nor permit the imposition of, any new conditions (or the modification or expansion of any existing conditions) or the limitation, amendment or waiver of any applicable remedies available with respect to the Financing (such definitive agreement, the “Definitive Financing Agreements”);
(iii) satisfy on a timely basis (or obtain the waiver of) all conditions precedent in the Commitment Letters and such Definitive Financing Agreements that are to be satisfied by, and within the control of, Parent and/or Merger Sub, including (without limitation) the satisfaction of conditions relating to (A) the preparation and delivery of pro forma financial statements, (B) the payment of fees and expenses, (C) the execution and/or delivery of documents and instruments in connection with the Debt Financing, and (D) the delivery of any applicable beneficial ownership certification and information under applicable “know your customer” and anti-money laundering rules and regulations, in each case, relating to Parent, Merger Sub and its Affiliates; and
(iv) upon the reasonable request of the Company, confirm with the Debt Financing Sources their intent and ability to perform, and the availability of the Debt Financing, under the Debt Commitment Letter, subject in each case to satisfaction or waiver of the Financing Conditions (including consummation of the Equity Financing), and that neither Parent nor the Debt Financing Sources are aware of any event or condition that could reasonably be expected to result in the failure of a Financing Condition; and
(v) in the event that all conditions in Exhibit C to the Offer Conditions Debt Commitment Letter (other than conditions that by their nature are to be satisfied at the Closing) have been satisfied (other than those conditions that would be expected to be satisfied substantially concurrently with the Closing), consummate or waived orcause to be consummated the Financing at or prior to the Closing. Parent shall, upon funding the Company’s reasonable written request, provide the Company with copies of any Definitive Financing Agreements and such other information and documentation regarding the Debt Financing as shall be reasonably necessary to allow the Company to monitor the progress of such financing activities. Parent and Merger Sub shall not, and Parent shall cause its other Subsidiaries not to, take any action (including by incurring any indebtedness other than the Debt Financing or Alternative Financing in accordance with Section 6.10(b)) that would reasonably be satisfied, consummate expected to cause the Debt Financing (including by instructing the Debt Financing Sources to fund the Debt or Alternative Financing in accordance with Section 6.10(b)) not to be available to fund the Financing Uses on the Closing Date. Upon the reasonable written request of the Company, Parent shall promptly, and in any event within two (2) Business Days, inform the Company in reasonable detail of any material developments concerning the status of its and Merger Sub’s efforts to arrange the Debt Financing and provide any information reasonably requested by the Company relating thereto. During the period commencing on the date of this Agreement and termination on the earlier to occur of the Closing and the termination of this Agreement pursuant to and in accordance with Article VIII, neither Parent nor Merger Sub (nor any of their Affiliates) will take any action in connection with the Debt Financing that would require the Company to make any filings with the SEC or include information in such filings that the Company would not otherwise reasonably expect to have included in its filings with the SEC at such time.
(b) In the event that all conditions in Exhibit C to the Debt Commitment LetterLetter (other than conditions that by their nature are to be satisfied at the Closing) have been satisfied (other than those conditions that would be expected to be satisfied substantially concurrently with the Closing) and the Debt Financing shall not have been funded at or prior to the Closing, Parent shall use commercially reasonable efforts to cause the Debt Financing and enforcing Parent’s rights the Person committing to provide the Debt Financing to comply with its obligations under the Debt Commitment Letter and the definitive agreements relating Definitive Financing Agreements to the which they are a party and to cause such Person to fund such 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or that any portion of the Debt Financing becomes unavailable on the terms and conditions (including any “market flex” provisions applicable thereto) contemplated by in the Debt Commitment Letter (including prior to the flex provisions (if any)) earlier to occur of the Closing and the termination of this Agreement pursuant to and in accordance with Article VIII (other than as a result by reason of the Company’s breach of any provision of this Agreement or failure to satisfy by the conditions set forth in Section 8.1 and Annex 1Company), then Parent shall promptly upon becoming aware thereof notify the Company, and each of Parent and its Affiliates Merger Sub shall (i) promptly notify the Company thereof and the reasons therefor, (ii) use their respective reasonable best efforts to 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 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 sources in 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, thatamount sufficient, when taken together with added to the portion of the Debt Financing that is and remains available to Parent, to consummate the transactions contemplated by this Agreement and any cash on hand, available lines of credit to pay all Financing Uses at the Closing (including under Borrower’s existing revolving credit and securitization facilities“Alternative Financing”) and other sources of immediately available funds, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a of the new financing commitment that provides for such alternative financing; provided that any provisions set forth in such new financing commitment relating Alternative Financing (the “Alternative Financing Commitment Letter”) promptly upon the effectiveness thereof, which Alternative Financing Commitment Letter shall not be required to include terms, fees, pricing terms, interest rates and other costs and conditions (including any “market flex” provisions (if anyapplicable thereto) that, taken as a whole, are materially less beneficial to Parent or Merger Sub than those terms, fees, interest rates and other terms that are customarily redacted costs and conditions contemplated in the Debt Commitment Letter (including any dates related “market flex” provisions applicable thereto); provided, that Parent and Merger Sub shall have no obligation to seek the cash equity from any source other than those counter parties to the Equity Commitment Letter, or in any amount with respect to an investor in excess of such investor’s commitment. As applicable, references in this Agreement (other than with respect to representations in this Agreement made by Parent and Merger Sub that speak as of the date hereof) (i) to Financing or Debt Financing, as applicable, shall include Alternative Financing, as applicable, (ii) to Commitment Letter or Debt Commitment Letter, as applicable, shall include the Alternative Financing Commitment Letter, as applicable and (iii) to Definitive Financing Agreements shall include the definitive documentation relating to any such Alternative Financing. Parent shall promptly deliver to the 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 necessary to fund the Financing Uses; provided, that any specific fee amounts and any specific “market flex” provisions applicable thereto set forth therein may be redacted, redacted so long as such redaction does redacted terms do not extend impose, or permit the imposition of, new or additional conditions precedent or the expansion of any existing conditions precedent to the funding of the Debt Financing.
(d) Without limiting the generality of Section 6.15(c), Parent shall promptly (and, in any event, within two (2) Business Days) notify the Company in writing of the occurrence of any of the following: (i) termination, withdrawal, repudiation, rescission, cancellation or expiration of any Commitment Letter of which Parent becomes aware, (ii) any breach or default under any Commitment Letter by any party to such Commitment Letter of which Parent becomes aware, and (iii) receipt by any of Parent, Merger Sub or any of its Affiliates or Representatives of any written notice or other written communication from any Debt Financing Source with respect to any (A) actual or threatened (in writing) breach, default, termination, withdrawal, repudiation, rescission or cancellation by any party to any Commitment Letter or (B) material dispute or disagreement between or among Parent, on the one hand, and any Debt Financing Source, on the other hand, in each case if as a result thereof it is reasonably likely that Parent will not be able to obtain all or any portion of the Financing on the terms that would and conditions contemplated by the Commitment Letters. As soon as reasonably practicable, but in any event within two (2) Business Days after any such request, Parent shall provide to the Company and its Representatives any information reasonably requested by the Company relating to any of the circumstances referred to in this Section 6.15(c).
(e) During the period commencing on the date of this Agreement and terminating on the earlier to occur of the Closing and the termination of this Agreement pursuant to Article VIII, Parent and Merger Sub shall not without the prior written consent of the Company (such consent not to be expected unreasonably withheld, conditioned or delayed), permit, consent to reduce or agree to (i) any amendment, restatement, replacement, supplement, termination, reduction, cancellation or other modification or waiver of any condition, provision or remedy under, the aggregate principal Equity Commitment Letter (other than to increase the amount of Equity Financing available thereunder), (ii) any amendment, restatement, replacement, supplement, termination, cancellation or other modification or waiver of any condition, or provision or remedy under, the Debt Commitment Letter, if such alternative financing to be funded on the Closing Date amendment, restatement, supplement, termination, cancellation, modification or waiver would (A) impose new or 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 Debt Financing or the termination of this Agreement in accordance with Article IXwould otherwise change, 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 modify or expand upon any of the conditions precedent to the funding of the Debt Financing, in any such case, from those set forth in the Debt Commitment Letter on the date of this Agreement in such a manner that could be reasonably expected to materially impair, materially delay or prevent the Closing, (B) reduce the aggregate amount of the Debt Financing or the net cash proceeds available from the Debt Financing to below an amount that is less than sufficient to fund the Required Amount Financing Uses on the Closing (after taking into account any cash on hand, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) increase in any other Financing and other sources of immediately available funds), sources) or (C) prevent or otherwise materially delay or make materially less likely and adversely affect the funding ability of the Debt Financing (Parent or Merger Sub to enforce their rights under the satisfaction of the Financing Conditions) on the Closing Date Commitment Letters or materially impair, delay or prevent the consummation of the transactions 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; provided however, including for the Offer avoidance of doubt, Parent and the Merger or Sub may (Ex) 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 amend, supplement and/or modify 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) Letter solely to add and appoint additional lenders, lead arrangers, bookrunners, underwriters, agents, lenders and syndication agents or similar Debt Financing Entities that have entities as parties thereto who had 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 of the date hereof and (including y) correct non-substantive typographical errors. Parent shall furnish to the market flex provisions (if any)) Company a copy of any amendment, restatement, replacement, supplement, modification, waiver or agree consent of or relating 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 promptly upon execution thereof. For purposes of this Agreement (other than with respect to representations in effect on the date hereof (including the market flex provisions (if any)). this Agreement made by Parent and Merger Sub expressly acknowledge that speak as of the date hereof), references to the “Debt Commitment Letter” shall include such document as permitted or required by this Section 6.15 to be amended, restated, replaced, supplemented or otherwise modified or waived, in each case from and agree after the date of such amendment, restatement, replacement, supplement or other modification or waiver.
(f) Notwithstanding anything in this Section 6.15 to the contrary, each of Parent and Merger Sub acknowledges and agrees that their neither the receipt by Parent or Merger Sub nor the availability to Parent or Merger Sub of the Financing or any other financing shall be a condition to the obligations under this Agreement, including their obligations of Parent or Merger Sub to consummate any of the Offer and the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of financingtransactions contemplated hereby.
Appears in 2 contracts
Sources: Merger Agreement (American Renal Associates Holdings, Inc.), Merger Agreement (American Renal Associates Holdings, Inc.)
Financing. Parent has delivered to the Company a correct and complete copy of the Commitment Letter and any related fee letters (awhich, with respect to any such fee letters, may be redacted for provisions related to fees, “flex” terms, economic terms, original issue discount amounts and other confidential terms, provided that no redaction (other than with respect to original issue discount amounts) From covers terms that would adversely affect the aggregate amount, conditionality, availability or termination of the financing contemplated therein). As of the date of this Agreement until Agreement, the earlier Commitment Letter is in full force and effect and is a valid and binding obligation of Parent and, to the Effective Time or knowledge of Parent, the termination of this Agreement other parties thereto, enforceable in accordance with Article IXits terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or other similar Laws affecting creditor’s rights generally and the availability of equitable relief). There are no conditions precedent related to the funding of the full amount of the Financing under the Commitment Letter that are not expressly set forth in the Commitment Letter. The Commitment Letter has not been amended or modified in any manner prior to the date of this Agreement. As of the date of this Agreement, the commitments contained in the Commitment Letter have not been withdrawn or rescinded in any respect. As of the date of this Agreement, neither Parent nor any of its Subsidiaries has entered into any agreement, side letter or other arrangement relating to the Financing under the Commitment Letter (excluding any agreement, letter or arrangement relating to any potential permanent, replacement or alternative financing) other than the Commitment Letter and any related fee letters provided to the Company under this Section 4.12. As of the date of this Agreement, Parent and its Affiliates shall use reasonable best efforts to take, has fully paid (or cause caused to be takenpaid) any and all commitment fees and other fees and amounts that are due and payable in connection with the Financing under the Commitment Letter prior to the date of this Agreement. As of the date of this Agreement, all actionsno event has occurred which, and use reasonable best efforts with or without notice, lapse of time or both, would reasonably constitute a breach or default on the part of Parent or, to dothe knowledge of Parent, or cause any other party thereto under the Commitment Letter that could result in any portion of the Financing to be doneunavailable. As of the date of this Agreement, assuming the representations and warranties of the Company contained in this Agreement are true and correct in all things reasonably necessary material respects and the performance of all obligations and compliance with all covenants and agreements required by this Agreement to be performed or advisable, to arrange and obtain the Debt Financing and to consummate the Debt Financing on complied with at or prior to the Closing Date. Such actions shall includeby the Company in all material respects, but Parent has no reason to believe that any of the conditions to the Financing under the Commitment Letter will 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate principal amount of such alternative financing to be funded on the Closing Date or impose additional conditions precedent that the Financing will not be made available to the funding of such alternative financing Parent on the Closing Date.
(d) From . Assuming the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement Financing is funded in accordance with Article IX, without the prior written consent of the CompanyCommitment Letter, Parent will have at Closing all funds necessary to consummate the Merger 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 transactions contemplated thereby and pay the conditions precedent to the funding fees and expenses 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (C) prevent or materially delay or make materially less likely the funding of the Debt Financing (or the satisfaction of the Financing Conditions) Parent due on the Closing Date (including after giving effect to any original issue discount amounts and the exercise of any “flex” rights with respect thereto). Notwithstanding anything to the contrary contained herein, (i) in no event shall the receipt or materially impair, delay availability of any funds or prevent the consummation financing by Parent or any of its Affiliates be a condition to any of Parent or Merger Sub’s obligations hereunder and (ii) it is understood and agreed that a breach of the transactions contemplated by representations and warranties contained in this AgreementSection 4.12 shall not result in the failure of a condition precedent to the Company’s obligations under this Agreement if, including the Offer notwithstanding such breach, Parent and the Merger, (D) materially adversely affect Parent’s ability Merger Sub are willing and able to consummate the transactions contemplated by this Agreement, including the 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, bookrunners, underwriters, agents, lenders and similar Debt Financing Entities that have not executed the Debt Financing Documents as in effect Agreement 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 Closing Date in accordance with this paragraph and the previous paragraph is the “Alternative Financingterms hereof.” 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 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 2 contracts
Sources: Merger Agreement (Linear Technology Corp /Ca/), Merger Agreement (Analog Devices Inc)
Financing. (a) 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 Merger Sub shall, and shall cause their respective Affiliates shall to, use reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisable, advisable to arrange consummate and obtain the Debt 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 consummate 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 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 from any source other than the Guarantor, or 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 extent 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. Such actions , Parent and Merger Sub shall includenot, but 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 limited to, using reasonable best efforts to: (i) comply with paid or original issue discount as compared to the fees and maintain in effect original issue discount contemplated by 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, Letters on a timely basis all Financing Conditions to the extent within date of this Agreement unless the control amount of Parent and its Affiliates; (iii) negotiate, execute and deliver the Debt Financing Documents to or Equity Financing is increased by a corresponding amount) such that Topco, Parent or Merger Sub (without, for the extent required 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 Amount Amounts, (after taking 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 account any cash on handprior to the Closing, available lines of credit the Definitive Financing Agreements or (including under Borrower’s existing revolving credit and securitization facilitiesD) and other sources of immediately available fundsotherwise reasonably be expected to prevent or hinder or materially delay the Closing (the foregoing clauses (A) through (D), which shall reflect collectively, the “Prohibited Financing Modifications”). Notwithstanding the foregoing, any amendment, supplement or modification to effectuate any market “flex” terms contained in the Debt Commitment Letter 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 (including any “market flex” provisions (if anyor titles with respect to such entities) related thereto) or on such other terms acceptable to thereto shall be permitted and shall not require written consent of the Company. Parent that would not constitute an Adverse Effect on Financing as compared to those set forth in the Debt Commitment Letter delivered shall promptly deliver to the Company on 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 date hereof; and (ivRedacted Fee Letters) in the event that the Offer Conditions have been satisfied or waived or, to the extent entered into prior to the Closing, the Definitive Financing Agreements promptly upon funding would be satisfiedexecution thereof.
(c) Parent shall, consummate 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 (including by instructing and, upon the Debt Financing Sources Company’s reasonable request, provide to fund the Debt Financing in accordance with Company complete, correct and executed copies of the Debt Commitment Letter, and enforcing Parent’s rights under the Debt Commitment Letter and the material definitive agreements relating to documents for 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 Merger Sub shall give the Company prompt written notice of (i) any material breach, repudiation or threatened material breach default, termination, cancellation or repudiation by any party to any of the Debt Commitment Letter Financing Letters or, to the extent entered into prior to the Closing, the Definitive Financing Agreements, of which Parent or its Affiliates Merger Sub becomes aware; provided , (ii) the receipt by Parent or Merger Sub of any written notice or other written communication from any Financing Source or any party to the Equity Commitment Letter with respect to any (A) material breach, default, termination, cancellation or repudiation by any party to any of the Financing Letters or, to 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 Financing Letters or any definitive document related to the Financing, in each case regarding the Financing, and (iii) the occurrence of an event or development that none could reasonably be expected to adversely impact the ability 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 be required to disclose or provide any such information, information reasonably requested by the disclosure of which, Company relating to any circumstance referred to in the judgement of Parent upon advice of outside counselimmediately preceding sentence, is subject to attorney-client applicable legal privilege or which would be in violation of any confidentiality obligationobligations.
(cd) In the event 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 Letter (including the flex provisions (if any)) Letters (other than (i) as a sole result of the Company’s breach of any provision of this Agreement or failure to satisfy (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 8.1 7.1 or Section 7.2 not to be satisfied) and Annex 1)such portion is necessary to fund the Required Amount on the Closing Date, then Parent and its Affiliates shall (i) Parent shall promptly notify the Company thereof in writing of such unavailability and the reasons therefor, reason therefor and (ii) Parent and Merger Sub shall use their reasonable best efforts to obtain arrange and obtain, as promptly as practicable, alternative financing from the same or alternative Debt Financing Entities on terms and conditionssources in an amount sufficient, taken as a whole, no less favorable to Parent than the Financing Conditions, not involving any conditions that would 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, that, when taken together with the portion of the Debt remaining available Financing that remains available and 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, is at least equal to fund the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate principal amount of such alternative financing to be funded Amount 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, without the prior written consent of the Company, Parent and its Affiliates shall not amend, modify, supplement, restate, assign, substitute or replace the “Alternative 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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 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 prior written consent of the Company, amend, modify, supplement, restate, assign, substitute or replace terms and conditions set forth in the Debt Commitment Letter, 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 (1related fee letters) 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 Alternative Debt Financing (which fee letters may be redacted in order to obtain alternative sources of debt financing in lieu of all or a portion of fashion consistent with the Debt Financing and/or Redacted Fee Letters).
(4e) 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 (x) the “Debt 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 Financing and references to Debt Financing, (y) the “Debt Commitment Letter”Letters” shall include such documents as permitted to be amended, modified, supplemented, waived or replaced by this Section 6.13 and any commitment letter or other binding documentation with respect to any Alternative Debt Financing and (z) “Debt Fee Letters”, “Debt Financing Documents”, “Debt Financing Entities”, “Debt Financing Sources”, or “Financing” shall include the documents (or commitments or debt financing sources, as applicable) in connection with any Alternative Financing to the extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 Letters as in effect on the date hereof (including the market flex provisions (if any)) permitted to be amended, modified, supplemented, waived or agree to replaced by this Section 6.13 and any term (including any market flex term (if any)) less favorable (taken as a whole) to Parent than such term contained in the Alternative 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 financingFinancing.
Appears in 2 contracts
Sources: Merger Agreement (CD&R Associates VIII, Ltd.), Merger Agreement (Cornerstone Building Brands, Inc.)
Financing. (a) 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 IX7, Parent and its Affiliates shall use 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 Debt Financing on or prior to the Closing 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, but not be limited to, 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 BorrowerParent’s existing revolving credit and securitization facilitiesfacility) and other sources of immediately funds available fundsto 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 Offer 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 IX7, Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach default or repudiation by any party to the Debt Commitment Letter of which Parent or its Affiliates becomes aware; provided that none . Parent shall keep the Company informed on a reasonably current basis upon request by the Company of Parent or Merger Sub shall be required the status of its efforts to disclose or provide any such information, arrange the disclosure of which, in Debt Financing contemplated by the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligationDebt Commitment Letter.
(c) In 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 Section 8.1 Article 6, and Annex 1except where such unavailability is the result of the incurrence of any Permanent Financing (as defined below)), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) use reasonable best efforts to obtain alternative financing 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 Financing Conditions, Debt Commitment Letter and not involving any conditions that would 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, that, when taken together with the portion of the Debt Financing that remains available and any cash on hand, available lines of credit (including under BorrowerParent’s existing revolving credit and securitization facilitiesfacility) and other sources of immediately funds available fundsto Parent on the Closing Date, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and and, when obtained, provide the Company with a true true, correct and complete copy of, a new financing commitment that provides for such alternative financingAlternative 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate principal amount of such alternative financing Alternative Financing to be funded on the Closing Date or impose additional conditions precedent to the funding of such alternative financing Alternative Financing on the Closing Date.
(d) 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 IX7, without the prior written consent of the CompanyCompany (which shall not be unreasonably withheld, delayed or conditioned), Parent and its Affiliates shall not amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter or any Debt Financing Document (except in connection with the 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 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 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 under BorrowerParent’s existing revolving credit and securitization facilitiesfacility) and other sources of immediately funds available fundsto 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 Transactions or the other transactions contemplated by this Agreement, including the Offer and the Merger, (D) materially adversely affect Parent’s ability to consummate the Transactions or the other transactions contemplated by this Agreement, including the Offer and the Merger Agreement or (E) materially adversely impact the ability of Parent or any of its Affiliates’ to enforce their respective its rights against the Debt Financing Sources or any of the other parties to the Debt Commitment Letters 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 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 or as a result of debt financing in lieu of all or having obtained a portion of the Debt 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 7.185.21, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same extent as the Debt FinancingFinancing 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 Sub Subs expressly acknowledge and agree that their obligations under this Agreement, including their obligations to consummate the Offer and the Merger, Agreement are not subject to, or conditioned on, Parent’s or Parent Merger Sub’s 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.)
Financing. (a) From Subject to the date terms and conditions of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXAgreement, Parent and its Affiliates Constellation shall use reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisableadvisable to obtain or cause to be obtained, to arrange and obtain the Debt Financing and to consummate consummate, the Committed Debt Financing on or prior to the Closing Date. Such actions shall includeDate on the terms and conditions set forth in the Debt Commitment Letter, but not be limited to, including 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)and comply with its obligations thereunder; (ii) satisfy, or obtain a waiver thereof, on a timely basis all Financing Conditions to negotiate and execute 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); (iii) satisfy on a timely basis, or on such other terms acceptable obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to Parent that would not constitute an Adverse Effect on Financing be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as compared to those required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter delivered Letter, to consummate the Committed Debt Financing at or prior to the Company on the date hereof; and (iv) in the event that the Offer Conditions have been satisfied or waived orClosing, upon funding would be satisfied, consummate the Debt Financing (including by instructing to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in accordance such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Commitment LetterPayoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and enforcing Parent’s rights under shall cause its Subsidiaries not to 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 and if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the definitive agreements relating effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing).
(b) From the date , or otherwise expands, amends or modifies any other provision 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms manner that would reasonably be expected to reduce the aggregate principal amount of such alternative financing to be funded on the Closing Date (x) delay or impose additional conditions precedent to prevent the funding of such alternative financing on the Closing Date.
Committed Debt Financing (d) From the date of this Agreement until the earlier or satisfaction of the Effective Time or the termination of this Agreement financing conditions in accordance with Article IX, 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 Borrowerare in Constellation’s existing revolving credit and securitization facilities) and other sources of immediately available funds), (C) prevent or materially delay or make materially less likely the funding of the Debt Financing (or the satisfaction of the Financing Conditionscontrol) on the Closing Date or materially impair, delay or prevent the consummation of the transactions contemplated by this Agreement, including the Offer and the Merger, (Dy) materially adversely affect Parent’s ability to consummate the transactions contemplated by this Agreement, including the Offer and the Merger or (E) materially adversely impact the ability of Parent or any of its Affiliates’ Constellation to enforce their respective its rights against the Debt Financing Sources or any of the other parties to the Debt Commitment Letters Letter or the definitive agreements with respect thereto thereto; provided that (clauses i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) through provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (E)B) the parties reasonably agree that, each an “Adverse Effect on Financing”)taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Parent mayConstellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, without not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the prior written consent avoidance of doubt, neither the Companyexistence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendamendment, modifymodification, supplementwaiver or replacement, restateincluding any Replacement Committed Debt Financing. Without limiting the foregoing, assignConstellation shall, substitute or replace and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including (1) as may be directed by one or more of the Other Parties in writing, to add and appoint additional arrangers, bookrunners, underwriters, agents, lenders and similar Debt Financing Entities that have not executed the extent consistent with the Debt Financing Documents as in effect Commitment Letter.
(b) To the extent that New Polaris is not expected to have funds available, including cash on hand and 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 Committed Debt Financing, that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all the parties, the parties shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable that are within their control to arrange and procure and have available, as of the Closing, Indebtedness (the “Supplemental Debt Financing”) constituting, together with unrestricted cash on hand and the Committed Debt Financing available at the Closing, funds sufficient to pay all of the cash amounts required to be provided by New Polaris and its Subsidiaries in each caseconnection with the consummation of the Transactions, so long as including the amounts payable in connection with the consummation of the Mergers, all transaction expenses and the amounts to fund the Debt Payoff Amount. It is understood that the parties will use their reasonable best efforts to arrange and procure any Supplemental Debt Financing required under the preceding sentence notwithstanding the cost of obtaining such amendments Supplemental Debt Financing or the actions required to arrange and procure such Supplemental Debt Financing (including any assets sales); provided that such cost or actions would not reasonably be reasonably expected to result in an Adverse Effect on Financinga material adverse effect with respect to New Polaris after the Closing or a material adverse effect with respect to any party prior to the Closing. Upon request of Subject to the Companyprior sentence, Parent each party shall keep the Company Other Parties informed in reasonable detail of the status of Parent’s its efforts to arrange any financing required in connection with the consummation of the Transactions. Each party further acknowledges and agrees that if the Committed Debt Financing and/or Supplemental Debt Financing are not available or not sufficient to pay the amounts described above, the parties shall use reasonable best efforts to find alternative funding sources (including through debt or equity offerings or asset sales) to permit the Transactions to be consummated as soon as possible in accordance with this Agreement and, in any event, before the Outside Date.
(c) Prior to the Closing Date, each party shall provide, and shall use reasonable best efforts to cause its Subsidiaries and Representatives to provide, on a timely basis, to the Other Parties, all cooperation reasonably requested by the Other Parties that is necessary, advisable or customary in connection with the Debt Financing. Any alternativeWithout limiting the generality of the foregoing, substitute or replacement debt financing obtained by Parent in accordance with this paragraph such cooperation and the previous paragraph is the “Alternative Financing.” For reasonable best efforts for purposes of this AgreementSection 6.15(c) in any event shall include: (i) providing the Other Parties, 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”, “Sources and potential Supplemental Debt Financing Entities”, “Debt Financing Sources”, or “Financing” shall include sources and their respective agents with (A) the documents financial statements and other financial information regarding the party and its Subsidiaries and (or commitments or financing sources, B) such financial information related to the party and its Subsidiaries as applicable) is reasonably required by Polaris for New Polaris to produce the pro forma financial statements required in connection with any Alternative Debt Financing and specified in writing by Polaris to the Other Parties; (ii) participating (including by making members of senior management with appropriate seniority and expertise, reasonably available to participate) in customary syndication and marketing activities, including sessions with the ratings agencies and underwriters, in connection with the Debt Financing; (iii) reasonably cooperating with the Debt Financing Sources’ and potential Supplemental Debt Financing sources’ and their respective agents’ due diligence; (iv) reasonably cooperating with the marketing efforts for any portion of the Debt Financing; (v) assisting Polaris in New Polaris’ preparation of customary bank information memoranda, lender presentations, offering memoranda, private placement memoranda (including under Rule 144A and/or Regulation S under the Securities Act), registration statements, prospectuses and prospectus supplements under the Securities Act and other materials in connection with a syndicated bank financing, securities offering or other debt offering in connection with the Debt Financing to the extent permitted relating to the party and the party’s Subsidiaries; (vi) assisting Polaris with New Polaris’ preparation of pro forma financial statements and pro forma financial information; (vii) instructing such party’s certified independent auditors to provide (x) consent to use of their reports in any materials relating to the Debt Financing, including SEC filings and offering memoranda that include or incorporate the party’s consolidated financial information and their reports thereon in accordance with normal customary practice and (y) customary auditors reports and comfort letters (including “negative assurances” comfort) with respect to financial information relating to the party and its Subsidiaries in customary form; (viii) using reasonable best efforts to provide (including using reasonable best efforts to obtain such documents from its advisors) customary certificates and other customary closing documents as may be reasonably requested by the Debt Financing Sources and potential Supplemental Debt Financing sources; (ix) causing the taking of corporate actions within the control of the party reasonably necessary to permit the completion of the Debt Financing; (x) to the extent necessary or advisable, using reasonable best efforts to facilitate the pledging of collateral and executing and delivering pledge and security documents (and any other documents or instruments required for the creation and perfection of security interests in the collateral securing the Debt Financing) or other definitive financing documents reasonably requested by the Debt Financing Sources or potential Supplemental Debt Financing sources (including guarantees and other deliverables), provided, however, that no obligation of any party or any of such party’s Subsidiaries under any such agreement or instrument under this Section 7.18clause (x) shall be effective until the Closing Date; (xi) so long as such information is reasonably requested at least 10 business days prior to the Closing Date, using reasonable best efforts to provide, at least five (5) business days prior to the Closing Date, to the Debt Financing Sources and potential Supplemental Debt Financing sources all documentation and other information with respect to the party and its Subsidiaries and reasonably requested by such Debt Financing sources that such Debt Financing sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and (xii) providing to Polaris such pertinent information reasonably requested by Polaris, and updating such Alternative information, describing the party or its Subsidiaries to be used in marketing or offering materials prepared in accordance with normal customary practice in connection with the Debt Financing such that, after giving effect to such updates, (A) such information, when taken as a whole along with the Constellation SEC Documents, Polaris SEC Documents or Sirius SEC Documents, as applicable, filed by such party since July 1, 2014 through such date, does not contain as of the time provided, any untrue statement of material fact or omit to state any material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements were made and (B) the financial statements and other financial information included in such updated information are sufficiently current pursuant to Rule 3-12 under Regulation S-X to the extent applicable and permit the party’s independent auditors to issue a customary comfort letter, including customary “negative assurance” comfort (in accordance with normal practices and procedures).
(d) Notwithstanding anything in this Agreement to the contrary, no party nor any of such party’s Subsidiaries shall be required to comply with take or permit the provisions taking of any action pursuant to this Section 6.15 that would (i) cause any representation or warranty in this Agreement to be breached by the same extent as party or any of the Debt Financing. Notwithstanding anything party’s Subsidiaries, (ii) cause any director, officer or employee or stockholder of the party or any of the party’s Subsidiaries to incur any personal liability not subject to indemnification, (iii) conflict with the contrary contained Organizational Documents of the party or any Laws applicable thereto, (iv) provide access to or disclose information that the party or any of the party’s Subsidiaries reasonably determines would jeopardize any attorney–client privilege of the party or any of the party’s Subsidiaries, or (v) subject to Section 6.15(b) (A) unreasonably interfere with the business or ongoing operations of the party and its Subsidiaries or (B) reasonably be expected to result in a material violation or breach of, or a default (with or without notice, lapse of time, or both) under, any Contract to which the party or any of the party’s Subsidiaries is a party.
(e) All non-public or otherwise confidential information regarding the parties or any of the parties’ Subsidiaries obtained by the Other Parties or their Representatives pursuant to this AgreementSection 6.15 shall be kept confidential in accordance with the Confidentiality Agreements.
(f) At the Closing, New Polaris shall, and the parties shall use their reasonable best efforts to cause the trustee under the Sirius Indentures to, execute and deliver a supplemental indenture, in no event form satisfactory to such trustee, pursuant to which New Polaris shall Parent (i) expressly assume all of the obligations of Sirius under the securities issued under the Sirius Indentures and all of the obligations of Sirius under the Sirius Indentures applicable thereto and (ii) if applicable, provide for such convertible or its Affiliates exchangeable notes to be required to pay any fees convertible or any interest rates applicable to exchangeable into New Polaris Common Shares in accordance with the Alternative Financing in excess terms of those contemplated by the Debt Commitment Letter as in effect on Sirius Indentures.
(g) At 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 AgreementClosing, including their obligations to consummate the Offer New Polaris shall, and the Merger, are not subject parties shall use their reasonable best efforts to cause the trustee under the Constellation Indentures to, or conditioned onexecute and deliver a supplemental indenture, Parent’s or Merger Sub’s receipt in form satisfactory to such trustee, pursuant to which New Polaris shall (i) expressly assume all of financingthe obligations of Constellation under the convertible notes issued under the Constellation Indentures and all of the obligations of Constellation under the Constellation Indentures applicable thereto and (ii) provide for such convertible notes to be convertible into New Polaris Common Shares in accordance with the terms of the Constellation Indentures.
Appears in 2 contracts
Sources: Merger Agreement (Colony Capital, Inc.), Merger Agreement (Barrack Thomas Jr)
Financing. (a) From Subject to the date terms and conditions of this Agreement until Agreement, unless otherwise agreed, each of Parent and Merger Sub will not permit any assignment of, any material amendment or modification to be made to, or any waiver of any material provision or remedy pursuant to the earlier Financing Letters if such assignment, amendment, modification or waiver would, or would be reasonably expected to: (i) reduce the aggregate amount of the Effective Time Debt Financing, including by changing the amount of fees to be paid or original issue discount of the Debt Financings (unless the Equity Financing is increased by a corresponding amount or Alternate Debt Financing that complies with Section 6.15(b) has been made available in a corresponding amount); (ii) adversely impact in any material respect the ability of the Company (as a third party beneficiary of the Equity Commitment Letter), Parent or Purchaser to enforce its respective rights against the other parties to the Financing Letters or the termination definitive agreements with respect thereto; or (iii) prevent or materially delay the consummation of this Agreement in accordance with Article IX, the Financing or the consummation of the Offer or the Merger.
(b) Each of Parent and its Affiliates 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 timely consummate the Debt Financing on or prior to the Closing Date. Such actions shall includeterms and conditions set forth in the Debt Commitment Letters, but not be limited to, including using its reasonable best efforts to: (i) comply with and maintain in effect the Debt Commitment Letter (Letters in accordance with the terms and subject to any amendment, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below)the conditions thereof; (ii) satisfysubstantially comply with its obligations under the Debt Commitment Letters; (iii) in good faith negotiate, execute and deliver definitive agreements with respect to the Debt Financing contemplated by the Debt Commitment Letters on the terms and conditions contemplated by the Debt Commitment Letters or obtain a waiver thereof, as such terms may otherwise be agreed; (iv) satisfy on a timely basis all Financing Conditions conditions to the extent Debt Financing that are applicable to, and within the control of Parent of, Parent, Merger Sub 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 their respective Subsidiaries in the Debt Commitment Letter (including any “market flex” provisions (if any) related thereto) or on such other terms acceptable Letters and the definitive agreements with respect to Parent that would not constitute an Adverse Effect on the Debt Financing as compared to those set forth in contemplated by the Debt Commitment Letter delivered to the Company on the date hereofLetters; and (ivv) consummate the Debt Financing at or prior to the Offer Closing. In furtherance and not in limitation of the foregoing, 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 Adverse Effect on Financing (as defined below) as compared to those set forth in the Debt Commitment Letter delivered Letters (other than due to the Company on failure of a condition to the date hereof, that, when taken together with the portion consummation of the Debt Financing that remains available resulting from a breach of any representation, warranty, covenant or agreement of the Company set forth in this Agreement, which (if curable) has not been cured by the earlier of (x) three (3) Business Days prior to the Offer Closing Date and any cash on hand, available lines (y) twenty (20) days after the Company’s receipt of credit (including under Borrower’s existing revolving credit and securitization facilitieswritten notice thereof) and other sources such portion is required to fund the payments required to be made by the Parent or Merger Sub hereunder, each of immediately available funds, is at least equal to the Required AmountParent and Merger Sub shall use its respective reasonable best efforts to, as promptly as practicable following the occurrence of such event: (A) obtain alternative debt financing (the “Alternate Debt Financing”) from alternative sources on terms and conditions not materially less favorable in the aggregate to Parent and Merger Sub than those set forth in the Debt Commitment Letters and in an amount sufficient, when added to the portion of the Financing that is still available and available cash on hand and the Equity Financing, to consummate the transactions contemplated by this Agreement and (iiiB) use reasonable best efforts obtain one or more new financing commitment letters with respect to obtainsuch Alternate Debt Financing (the “New Debt Commitment Letter”), which New Debt Commitment Letter will replace the applicable existing Debt Commitment Letter in whole or in part; provided, however, that nothing herein shall be construed as to require Parent or Merger Sub to accept Alternate Debt Financing (including any commitments therefor) that (1) are less favorable than those in the applicable existing Debt Commitment Letter, (2) require the payment of fees in excess of those contemplated in the applicable existing Debt Commitment Letter, or (3) could reasonably be expected to prevent or materially delay the Offer, the Merger and when obtained, the other transactions contemplated hereby. Parent shall promptly (and no later than one (1) Business Day after receipt thereof) provide the Company with a true and complete copy ofof any New Debt Commitment Letter, together with any related exhibits, schedules, supplements and term sheets (and a new financing commitment true and complete copy of any fee letter in connection therewith, with pricing terms and any other terms not relating to conditionality or availability of the Debt Financing being redacted). In the event that provides for Parent or Merger Sub obtains Alternate Debt Financing, any reference in this Agreement to the “Financing Letters,” the “Debt Commitment Letter,” the “Debt Financing” or the “Financing” (and other like terms in this Agreement) will be deemed modified to include such alternative financingAlternate Debt Financing in lieu of the Debt Financing contemplated by the applicable existing Debt Commitment Letter.
(c) Parent and Merger Sub shall: (i) from time to time at the request of the Company, keep the Company reasonably informed as to the status of its efforts to arrange the Debt Financing or any applicable Alternate Debt Financing; provided and (ii) promptly (and no later than one (1) Business Day) provide the Company with copies of all executed amendments, modifications or replacements of Debt Commitment Letters (it being understood that any provisions set forth in such new financing commitment relating amendments, modifications or replacements shall only be as permitted herein) related to feesthe Financing. Without limiting the generality of the foregoing, pricing termsParent and Merger Sub shall promptly (and no later than one (1) Business Day) notify the Company: (A) of any oral or written repudiation or termination or material breach or default by any party to the Financing Letters of which Parent, “market flex” provisions (if any) and other terms that are customarily redacted (including Merger Sub or their Affiliates become aware or any dates related thereto) may be redactedevent or circumstance that, so long as such redaction does not extend to any terms that with or without notice, lapse of time or both, would reasonably be expected to reduce the aggregate principal amount of such alternative financing give rise to be funded on the Closing Date any material breach or impose additional conditions precedent default by any party to the funding Debt Financing or Equity Financing; (B) of such alternative financing on the Closing Date.
receipt by Parent, Merger Sub or their Affiliates of any purported repudiation or termination of the Financing Letters; or (dC) From if for any reason either Parent or Merger Sub in good faith no longer believes that one of Parent or Merger Sub will be able to obtain all or any portion of the Financing. Parent shall provide any information reasonably requested by the Company relating to any of the circumstances referred to in the previous sentence as soon as reasonably practicable after the date that the Company delivers a written request therefor to Parent. Notwithstanding the foregoing, in no event shall Parent or Merger Sub permit or consent to any amendment, supplement or modification to, or any waiver of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXany provision under, 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 Letters (whether the initial Debt Financing Document or Alternate Debt Financing) if such amendment, modification, supplement, restatementmodification or waiver (w) imposes new or additional conditions, assignmentor otherwise expands any of the conditions, substitution or replacement would (A) impose additional conditions precedent or expand upon the conditions precedent to the initial funding of the Debt FinancingFinancing at Closing in a manner that would make such conditions more onerous than those set forth therein on the date hereof, (Bx) reduce would reasonably be expected to materially and adversely affect the amount ability of Parent or Merger Sub to enforce its rights against the other parties to the Debt Commitment Letters, (y) would reasonably be expected to materially impair, materially delay or prevent the availability of all or a portion 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 or (Ez) materially adversely impact would reduce 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, 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 aggregate cash amount of the Debt Financing and/or (4) increase to an amount that, when taken together with other funds available to Parent and Merger Sub, is not sufficient to pay the aggregate amount consideration to be paid by Parent or Merger Sub at the Closing and all other amounts required to be paid at the Closing in connection with the consummation of the Debt Financingtransactions contemplated hereby and to pay all related fees and expenses required to be paid at the Closing in connection therewith.
(d) Notwithstanding anything in this Agreement to the contrary, in except for the extension to the Offer contemplated by the proviso to Section 1.01(b), each case, so long as such amendments would not be reasonably expected to result in an Adverse Effect on Financing. Upon request of Parent and Merger Sub understands and acknowledges and agrees that under 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 terms 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 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 Parent’s and Merger Sub expressly acknowledge and agree that their obligations under this Agreement, including their obligations Sub’s obligation to consummate the Offer and the Merger, are Merger is not in any way contingent upon or otherwise subject to, to Parent’s and Merger Sub’s consummation of the Financing or conditioned onany other financing arrangements, Parent’s or and Merger Sub’s receipt obtaining of financingthe Financing or any other financing or the availability, grant, provision or extension of the Financing or any other financing to Parent and Merger Sub.
Appears in 2 contracts
Sources: Merger Agreement (MGC Parent LLC), Merger Agreement (MGC DIAGNOSTICS Corp)
Financing. (a) 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 use 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 Debt Financing on or prior to the Closing Date. Such actions shall include, but not be limited to, using its commercially reasonable best efforts to: (i) comply negotiate definitive agreements with and maintain in effect 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 Letter (and subject to any amendment, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) belowSection 5.12(b); (ii) satisfy, or obtain a waiver thereof, satisfy on a timely basis all conditions set forth in such Debt Financing Conditions Commitments applicable to the extent within the control of Parent and its AffiliatesMerger Sub that are within their control; (iii) negotiateobtain, execute at or prior to the Closing Date the financing necessary such that Parent and deliver 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 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 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 hereofCommitment; and (ivv) in fully enforcing the event that Sponsors’ obligations (and 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, rights of Parent and enforcing Parent’s rights Merger Sub) 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or Equity Financing Commitment. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by in 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 Section 8.1 and Annex 1)Financing Commitments, then Parent and shall use its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) use commercially reasonable best efforts to arrange to obtain alternative financing from the same or alternative Debt Financing Entities sources on terms and conditionsnot materially less favorable, taken as a wholein the aggregate, no less favorable to Parent than the Financing Conditions, not involving any conditions that would constitute an Adverse Effect on Financing (as defined below) as compared to those set forth determined in the Debt Commitment Letter delivered to the Company on the date hereof, that, when taken together with the portion reasonable judgment of the Debt Financing that remains available and any cash on hand, available lines of credit (including under Borrower’s existing revolving credit and securitization facilitiesParent) and other sources of immediately available funds, is at least equal to the Required Amount, 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) use reasonable best efforts 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 obtain, and when obtained, provide 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 true and complete copy of, corresponding amount) beyond what is contemplated under the Debt Financing Commitment (other than as a new financing commitment that provides for 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 alternative financing; 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 provisions set forth of the conditions to the receipt of the Financing 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 redacted, so long as such redaction does not extend to any terms a manner that would reasonably be expected to reduce the aggregate principal amount of such alternative financing to be funded on the Closing Date (I) delay or impose additional conditions precedent to the funding of such alternative financing on prevent the Closing Date.
, (dII) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX, 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 make 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (C) prevent or materially delay or make materially less likely the funding of the Debt Financing (or the satisfaction of the Financing Conditionsconditions to obtaining the Financing) on the Closing Date or materially impair, delay or prevent the consummation of the transactions contemplated by this Agreement, including the Offer and the Merger, (D) materially adversely affect Parent’s ability less likely to consummate the transactions contemplated by this Agreement, including the Offer and the Merger occur or (EIII) materially adversely impact the ability of Parent or any of its Affiliates’ Merger Sub, as applicable, to enforce their respective its rights against the Debt Financing Sources or any of the other parties to the Debt Commitment Financing Letters or the definitive agreements with respect thereto 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 (clauses (A) through (Eincluding any lender flex provisions contained in any fee letter entered into by Parent or Merger Sub in connection with such Debt Financing Commitment), each an “Adverse Effect including using its reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on Financing”); provided that a timely basis all conditions applicable to the Parent may, without the prior written consent of the Company, amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter, including (1) and Merger Sub to add and appoint additional arrangers, bookrunners, underwriters, agents, lenders and similar Debt Financing Entities that have not executed obtaining the Debt Financing Documents as in effect at the Closing set forth therein that are within its control, (iii) enter into definitive agreements with respect thereto on the date hereof and, in connection therewith, amend the economic terms and other arrangements with respect to such appointments, (2) modify pricing, (3) terminate or reduce any commitments under 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 order 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 obtain alternative sources the Company; and (iv) upon satisfaction of debt financing the conditions set forth in lieu of all the Financing Commitments, consummate the Financing at or a prior to the Closing. In the event any portion of the Debt Financing and/or (4) increase becomes unavailable on the aggregate amount of terms and conditions contemplated in the Debt FinancingFinancing Commitment (including any lender flex provisions contained in any fee letter entered into by Parent or Merger Sub in connection with such Debt Financing Commitment and other that changes to such terms and conditions that, in each case, so long as such amendments would do not be reasonably expected to result in an Adverse Effect on Financing. Upon request reduce the aggregate committed amount of financing under, or the Companyconditionality of, the Debt Financing Commitment), the Parent shall keep promptly notify the Company informed (and in any event within one (1) Business Day thereof) and shall use its reasonable detail of the status of Parent’s best efforts to arrange the Debt Financing. Any alternative, substitute or replacement debt to obtain alternative financing obtained by Parent in accordance with this paragraph from alternative sources on terms 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 conditions no less favorable to the extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 in an amount sufficient to consummate the transactions contemplated hereby promptly following the occurrence of such event.
(d) Parent and the Surviving Corporation shall take any and all actions reasonably necessary to ensure that their obligations under any distributions by the Surviving Corporation to the Company Shareholders in connection with this Agreement, including their obligations if any, shall be made in compliance with the CCC and without any liability to consummate the Offer and Indemnified Parties or the MergerCompany Shareholders under the CCC.
(e) At the Closing, are not subject toParent 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 conditioned on, one or more of Parent’s or Merger Sub’s receipt of financingSubsidiaries) pursuant to the Financing.
Appears in 2 contracts
Sources: Merger Agreement (Sonicwall Inc), Merger Agreement (Sonicwall Inc)
Financing. (a) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXParent shall, and shall cause each Parent and its Affiliates shall Subsidiary to, use 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, advisable to arrange and obtain funds sufficient to fund the Debt Financing and to consummate the Debt Financing Amounts on or prior to the Closing Date. Such actions shall includedate on which the Merger is required to be consummated pursuant to the terms hereof, but 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 be limited to, using reasonable best efforts to: (i) comply with and maintain in effect the Debt Commitment Letter (subject to any amendmentan escrow arrangement, supplement, replacement, substitution, termination or other modification or waiver (2) notes that is not prohibited by clause (d) below); (ii) satisfy, or obtain a waiver thereof, on a timely basis all Financing Conditions are subject 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)an escrow agreement, 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 have conditions to Parent that would funding not constitute an Adverse Effect on Financing as compared to less favorable than those set forth in the Debt Commitment Letter delivered to the Company on as of the date hereof; hereof and (iv3) in the event that the Offer Conditions committed term loan facility, which shall have been satisfied or waived or, upon conditions to 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 not less favorable to Parent than the Financing Conditions, not involving any conditions that would 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 as of the date hereof, thatcollectively, when taken together with the portion “Replacement Financing”)). In furtherance and not in limitation of the Debt Financing that remains available and any cash on handforegoing, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) and other sources of immediately available funds, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) Parent shall use reasonable best efforts to obtaintake, or cause to be taken, all actions and when obtaineddo, provide or cause to be done, all things reasonably necessary or advisable to obtain the Company 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 a true respect to the Debt Financing (the “Definitive Agreements”) consistent with the terms and complete copy ofconditions contained in the Debt Commitment Letter (including, a new financing commitment that provides for such alternative financing; as necessary, the “flex” provisions contained in any related fee letter) or with other terms agreed by Parent and the Financing Parties provided that any provisions the conditions to the consummation thereof are not more onerous than the conditions set forth in such new financing commitment relating 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 feesbe paid, pricing termsas the same shall become due and payable, “market flex” provisions (if any) all fees and other terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce amounts under the aggregate 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 DateDebt Commitment Letter and Definitive Agreements.
(db) From Parent or any Parent Subsidiary may (i) amend, modify, replace, assign or agree to any waiver under the date of this Agreement until Debt Commitment Letter or any Definitive Agreements without the earlier prior written approval of the Effective Time or the termination of this Agreement in accordance with Article IXCompany, provided, that neither Parent nor any Parent Subsidiary shall, without the prior written consent of the CompanyCompany (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, Parent and its Affiliates shall not amendconsent to or agree to any amendment, modifyreplacement, supplementsupplement or modification to, restateor any waiver of, assignany provision or remedy under, substitute or replace the Debt Commitment Letter or any Debt Financing Document the Definitive Agreements if such amendment, modificationreplacement, supplement, restatementmodification, assignment, substitution waiver or replacement would remedy (A) impose additional adds new (or adversely modifies any existing) conditions precedent or expand upon the conditions precedent to the funding consummation of all or any portion of the Debt Financing, (B) reduce reduces the aggregate principal amount of the Debt Financing or unless the net cash proceeds available from aggregate amount of the Debt Financing to an amount that is less than the Required Amount (after taking into account any following such reduction, together with cash on handhand and cash available to Parent pursuant to a Replacement Financing, available lines 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 credit 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 (including under Borrower’s existing revolving credit and securitization facilitiesa “Replacement Financing Reduction”) and other sources of immediately available fundsshall be permitted), (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 transactions 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 or (E) materially adversely impact affects the ability of Parent or any of its Affiliates’ to enforce their respective its rights against the Debt Financing Sources or any of the other parties to the Debt Commitment Letters Letter or the definitive agreements with respect thereto 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 (ED), each an collectively, the “Adverse Effect on FinancingProhibited Modifications”); provided provided, that notwithstanding the foregoing, Parent may, without the prior written consent of the Company, amend, or any Parent Subsidiary may modify, supplement, restate, assign, substitute supplement or replace amend the Debt Commitment Letter, including Letter to (1) to add and appoint additional lenders, lead arrangers, bookrunners, underwriters, agents, lenders and syndication agents or similar Debt Financing Entities entities that have not executed the Debt Financing Documents Commitment Letter as in effect on of the date hereof and, in connection therewith, amend the economic of this Agreement and other arrangements with respect to such appointments, (2) modify pricing, implement or exercise any “market flex” provisions contained in the Debt Commitment Letter or (3ii) terminate or reduce any commitments under the Debt Commitment Letter or 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 order to obtain alternative sources of debt financing in lieu of all accordance with any amendment, replacement, supplement, termination or a portion other modification of the Debt Financing Commitment Letter permitted pursuant to this Section 6.12, such new commitment letters and/or (4) increase the aggregate amount of the Debt Financing, in each case, so long as such amendments would not fee letters shall be reasonably expected deemed 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 be the “Alternative Financing.Debt Commitment Letter” For for all purposes of this Agreement, Agreement and references to “Debt Financing” herein shall include and mean 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 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 so amended, replaced, supplemented or otherwise modified, as applicable. Parent shall promptly deliver to the date hereof (including the market flex provisions (if any)) Company copies of any amendment, replacement, supplement, termination, modification, waiver 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 replacement of 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 and/or any Definitive 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 2 contracts
Sources: Merger Agreement, Merger Agreement (Tapestry, Inc.)
Financing. (a) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX, (i) Parent and its Affiliates shall Merger Sub will use their respective reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisable, advisable to arrange and obtain the Debt Financing and to consummate the Debt Financing on or prior to the Closing 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by described in the Debt Commitment Letter Financing Commitments (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 Section 8.1 and Annex 1applicable “market flex” provisions), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) use reasonable best efforts to obtain alternative financing from (A) maintain in effect the same or alternative Debt Financing Entities Commitments until the Merger is consummated, (B) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions, taken as a whole, no less favorable to Parent than the Financing Conditions, not involving any conditions that would 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such alternative financing; provided that any provisions set forth in such new financing commitment relating to fees, pricing terms, applicable “market flex” provisions provisions) contemplated by the Financing Commitments (if any) and or on other terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does acceptable to Parent and could not extend to any terms that would reasonably be expected to (1) reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds)Financing, (C2) prevent introduce new or materially additional conditions or otherwise be reasonably likely to prevent, impede, delay or make materially less likely impair the funding of the Debt Financing (or the satisfaction availability of the Financing Conditions) on or the Closing Date ability of Parent or materially impair, delay or prevent the consummation of the transactions contemplated by this Agreement, including the Offer and the Merger, (D) materially adversely affect Parent’s ability Merger Sub to consummate the transactions contemplated by this Agreement, including Merger as of the Offer and the Merger Closing or (E3) materially adversely impact the ability of Parent or any of its Affiliates’ Merger Sub to enforce their respective its rights against the Debt Financing Sources or any of the other parties to the Debt Commitment Letters Financing Commitments, (C) satisfy on or prior to the definitive agreements with respect thereto Closing all conditions precedent applicable to Parent and Merger Sub in the Financing Commitments, (clauses (AD) through consummate the Financing at or prior to the Closing, (E)) enforce the rights of Parent and Merger Sub under the Financing Commitments and (F) comply in all material respects with its covenants and other obligations under the Financing Commitments. Notwithstanding anything contained herein to the contrary, each an “Adverse Effect on Financing”); provided that neither Parent maynor Merger Sub will permit any amendment, without supplement or other modification of, or waiver of any provision or remedy under, the prior written consent of Financing Commitments to the Company, amend, modifyextent such amendment, supplement, restate, assign, substitute other modification or replace the Debt Commitment Letter, including waiver could reasonably be expected to (1) to add and appoint additional arrangers, bookrunners, underwriters, agents, lenders and similar Debt Financing Entities that have not executed reduce the Debt Financing Documents as in effect on aggregate amount of net cash proceeds available from the date hereof and, in connection therewith, amend the economic and other arrangements with respect to such appointmentsFinancing, (2) modify pricingintroduce new or additional conditions or otherwise be reasonably likely to prevent, impede, delay or impair the availability of the Financing or the ability of Parent or Merger Sub to consummate the Merger as of the Closing, or (3) terminate adversely impact the ability of Parent or reduce any commitments under Merger Sub to enforce its rights against 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 other parties to the extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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))Commitments. Parent and Merger Sub expressly acknowledge and agree that their obligations under this Agreementwill deliver to the Company copies of any such amendment, including their obligations to consummate the Offer and the Mergermodification, are not subject to, replacement or conditioned on, Parent’s or Merger Sub’s receipt of financingwaiver promptly upon its execution thereof.
Appears in 2 contracts
Sources: Merger Agreement (American Greetings Corp), Merger Agreement (American Greetings Corp)
Financing. (a) From Prior to the date Closing, the Sellers shall use 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 the 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 least five (5) Business Days prior to the Closing Date, providing all documentation and other customary information about the Transferred Subsidiaries and the Indirect Subsidiaries as is reasonably requested by the Debt Financing Sources with respect to applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act (iii) facilitating the granting of this Agreement liens and pledging collateral as may be reasonably requested by the Buyers, provided that no guarantee, security interest or pledge shall be executed, delivered or be effective until the earlier occurrence of the Effective Time or Closing and subject to compliance with applicable laws (including laws on financial assistance), (iv) permitting the termination 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 this Agreement establishing collateral and/or security arrangements after the Closing, and (v) obtaining such payoff letters and collateral lien and/or security releases as are required by the Debt Financing Sources (and provided that drafts of such payoff letters and collateral and/or security releases are provided in accordance with Article IXSection 7.4(g)); provided, Parent however, that notwithstanding anything in this Agreement to the contrary, none of the Sellers, the Transferred Subsidiaries or the Indirect Subsidiaries shall (A) 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 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 Affiliates 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 agree to provide any 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 laws on financial assistance), take any corporate action or execute any consent approving, or executing any document or agreement relating to, the Debt Financing. The Buyers shall indemnify and hold harmless Sellers, the Transferred Subsidiaries and the Indirect Subsidiaries for any and all losses, costs and expenses actually suffered or incurred by them in connection with the arrangement of the Buyer Financing or any action taken by them at the request of the Buyers pursuant to this Section 6.13.
(b) The Buyers shall use their reasonable best efforts to (i) satisfy on a timely basis all conditions to funding set forth in such Debt Commitment Letters and the conditions set forth for utilisation of the facilities described in the Debt Commitment Letters, (ii) obtain, at or 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 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 Debt Commitment Letters (the “Facility Documents”), if such amendment, modification, waiver or replacement (x) reduces the aggregate amount of the Buyer 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, or (y) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Buyer Financing in a manner that would reasonably be expected to (I) delay or prevent the consummation of the transactions 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, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisable, advisable to arrange and obtain the Debt Financing and to consummate the Debt Buyer Financing on or prior to the Closing Date. Such actions shall includeterms and conditions described in the Commitment Letters and the Facility Documents, but not be limited to, including using its reasonable best efforts to: to (i) comply with and maintain in effect the Debt Commitment Letter (subject to any amendmentLetters and the Facility Documents, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below); (ii) satisfy, or obtain a waiver thereof, satisfy on a timely basis all Financing Conditions conditions applicable to the extent Buyers to obtaining the Debt Financing at the Closing set forth therein that are within the control of Parent its control; and its Affiliates; (iii) negotiate, execute and deliver Debt Financing Documents to upon satisfaction of 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 conditions set forth in the Debt Commitment Letter delivered to Letters and 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 satisfiedFacility Documents, consummate the Debt Buyer 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 at or prior 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) Closing. In the event all or any portion of the Debt Buyer Financing becomes unavailable on the terms and conditions contemplated by in the Debt Commitment Letter (including Letters and the flex provisions (if any)) (other than as a result of Facility Documents, the Company’s breach of any provision of this Agreement or failure to satisfy the conditions set forth in Section 8.1 and Annex 1), then Parent and its Affiliates Buyers shall (i) promptly notify the Company thereof Sellers of such unavailability and the reasons therefortherefor (and in any event within one (1) Business Day thereof), (ii) and shall use their reasonable best efforts to arrange 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, 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 eventevent (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 (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate principal amount of such alternative financing to be funded Debt Financing Sources on the Closing Date or impose additional conditions precedent other hand, or, to the funding of such alternative financing on the Closing Date.
(d) From the date of this Agreement until the earlier knowledge of the Effective Time or the termination of this Agreement in accordance with Article IXBuyers, 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 among 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 their obligations to fund the Required Amount. If at any commitments under time for any reason the Debt Financing Buyers believe in order good faith that they will not be able to obtain alternative sources of debt financing in lieu of all or a any portion of the Debt Buyer Financing and/or (4) increase on the aggregate amount of the Debt Financingterms and conditions, in each casethe manner or from the sources contemplated by the Commitment Letters and the Facility Documents or any other definitive agreements related thereto, so long as such amendments would not be reasonably expected the Buyers shall deliver prompt written notice to result in an Adverse Effect on Financingthe Sellers. Upon request of the Company, Parent The Buyers shall keep the Company Sellers informed on a reasonably current basis in reasonable detail of the status of Parent’s its efforts to arrange obtain 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 provide to the extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions Sellers copies of this Agreement to the same extent as the Debt Financingall related documents. Notwithstanding anything to the contrary contained in this Agreement, in In no event shall Parent the unavailability of any funds or its Affiliates be required to pay any fees financing (including, for the avoidance of doubt, the Buyer Financing) by or any interest rates applicable to the Alternative Financing in excess Buyers excuse the Buyers from performance 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 of their respective 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 financinghereunder.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Mallinckrodt PLC)
Financing. (a) 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 Merger Sub shall use their respective reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisable, advisable to arrange 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 Debt Financing on at or prior to the Closing DateEffective Time. Such actions shall includeIn furtherance and not in limitation of the foregoing, 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 all conditions to the Offer Conditions 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, or upon the funding would will 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 all 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 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), then Parent and its Affiliates Merger Sub shall (i) promptly notify the Company thereof and the reasons therefor, (ii) use their 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 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, that, when taken together with the portion of enforce their rights under the Debt Financing that remains available Letter and 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, is at least equal to the Required AmountDefinitive Debt Agreements, as promptly as practicable following the occurrence of such eventcase may be, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such alternative financing; provided that any provisions set forth in such new financing commitment relating to fees, pricing terms, “market flex” provisions (if any) and including by suit or other terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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 Dateappropriate proceeding.
(db) From Parent shall have the date of this Agreement until right from time to time to amend, modify or replace the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXFinancing Commitments; provided, that Parent shall not, without the prior written consent of the Company, Parent and its Affiliates shall not amendagree to, modifyor permit, supplementany amendment, restatemodification or replacement of, assignor waiver under, substitute the Financing Commitments or replace the Debt Commitment Letter or any Debt definitive agreements relating to the Financing Document Commitments if such amendment, modification, supplement, restatement, assignment, substitution replacement or replacement waiver would (A) impose additional conditions precedent or expand upon reduce the conditions precedent to the funding aggregate amount of the Debt Financing, Financing (B) reduce the amount of unless the Debt Financing or the net cash proceeds available from the Debt Equity 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 existing revolving credit and securitization facilities) and other sources of immediately available fundsincreased by a corresponding amount), (CB) prevent impose new or materially additional conditions or expand or amend any of the 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 Financing, the Offer Closing or the Closing, (2) make materially less likely the funding of the Debt 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 satisfaction 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 Conditionsless likely to occur, or (3) on adversely impact the Closing Date ability of the Parent to enforce its rights against the other parties to the Financing Commitments or materially impairthe 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 aggregate would not reasonably be expected to delay or prevent the consummation of the transactions contemplated by this Agreement, including Debt Financing or 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 or (E) materially adversely impact the ability of Closing. Parent or any of its Affiliates’ to enforce their respective rights against the Debt Financing Sources or any of the other parties shall deliver to the Debt Commitment Letters Company copies of any such amendment, modification, replacement or waiver promptly upon its execution thereof. If, notwithstanding the definitive agreements with respect thereto (clauses (A) through (Euse of reasonable best efforts by Buyer to satisfy its obligations under this Section 7.15(a), 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 or Definitive Debt Documents is terminated or expires or otherwise becomes unavailable on the terms and conditions (4) increase including the aggregate amount of “flex” provisions contained in the redacted fee letter accompanying the Debt Financing, Financing Letter) specified 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 CompanyDebt Financing Letter or the Definitive Debt Agreements, Parent shall keep promptly notify the Company informed in and shall use its reasonable detail of the status of Parent’s best efforts to arrange the Debt Financing. Any alternative, substitute or replacement debt and obtain alternative 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 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to from the same extent as the Debt Financing. Notwithstanding anything to the contrary contained in this Agreementand/or alternative sources on terms and conditions not less favorable, 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 AgreementParent, 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.than
Appears in 2 contracts
Sources: Merger Agreement (Michael Baker Corp), Merger Agreement (Michael Baker Corp)
Financing. (a) 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 use 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 Debt Financing on or prior to the Closing 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same extent as the Debt Financing. Notwithstanding anything to the contrary contained in this Agreement, in no event shall Parent it is expressly understood and agreed by the Parties that (x) the Debt Financing Commitment by its terms contemplates reductions of the commitments thereunder or its Affiliates be required to pay any fees or any interest rates applicable the termination thereof pursuant to the Alternative Financing provisions entitled “Mandatory Commitment Reductions and Prepayments” in excess of those contemplated by Annex B to the Debt Financing Commitment Letter as and (y) that Acquiror shall 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 intent to terminate or reduce such commitments, (ii) after giving effect on the date hereof to such termination or reduction Acquiror shall maintain available cash, committed financing (including the market flex provisions (if any)under any portion of Debt Financing Commitment) or agree to any term (including any market flex term (if any)) less favorable (taken as a whole) to Parent than such term contained and available capacity under its existing revolving credit facilities sufficient in the Debt Commitment Letter as in effect on aggregate to enable Acquiror and the date hereof Tower Operator to consummate the transactions contemplated hereby, including payment of the Consideration and fees and expenses of Acquiror relating to the transactions contemplated hereby and (including iii) prior to such termination or reduction, Acquiror supplies written documentation reasonably satisfactory to the market flex provisions Verizon Parties evidencing such available cash, committed financing and available capacity.
(if any)). Parent b) Acquiror and Merger Sub expressly the Tower Operator acknowledge and agree that their obligations under the receipt of the Debt Financing is not a condition to the consummation of the Initial Closing or the other transactions contemplated by this AgreementAgreement and the Collateral Agreements, including and that, except as otherwise expressly provided herein, the failure to obtain the Debt Financing shall not in any way relieve Acquiror and the Tower Operator of their obligations to consummate the Offer Initial Closing or the other transactions contemplated by this Agreement and the MergerCollateral Agreements.
(c) Subject to any termination or reduction in accordance with Section 9.11(a) and to the extent some or all of the proceeds of the “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) maintaining in effect and using commercially reasonable efforts to enforce the Debt Financing Commitment, including, subject toto 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 conditions set forth in Section 10.1 and Section 10.2 have been satisfied (or conditioned onotherwise waived with, Parent’s or Merger Sub’s receipt to the extent required, the consent of financingthe Debt Financing Sources).
Appears in 2 contracts
Sources: Master Agreement, Master Agreement (American Tower Corp /Ma/)
Financing. (a) From the date Buyer will promptly notify Seller of this Agreement until the earlier any proposal by any of the Effective Time or the termination of this Agreement in accordance with Article IX, Parent and its Affiliates shall use reasonable best efforts financial institutions party 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 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 update Seller, in a level of detail reasonably satisfactory to consummate Seller, with respect to the status, proposed closing date and material terms of the proposed Debt Financing. Buyer shall not consent to 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 or the Debt Financing.
(b) Buyer shall, and shall cause its Affiliates to, use all commercially reasonable efforts to (1) maintain the effectiveness of the Debt Financing Commitment Letter, (2) enter into definitive documentation with respect to the Debt Financing on or prior to the Closing 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 Financing Commitment Letter Letter, (including any “market flex” provisions (if any3) related thereto) or on such other terms acceptable satisfy all funding conditions to Parent that would not constitute an Adverse Effect on the Debt Financing as compared to those set forth in the Debt Commitment Letter delivered definitive documentation with respect to the Company Debt Financing, (4) cause to be made available to Buyer, on or prior to the date hereof; and (iv) in first anniversary of the event that the Offer Conditions have been satisfied or waived orDexter Closing, upon funding would be satisfied, consummate the Debt Financing (including by instructing the Debt Financing Sources to fund the Debt Financing in accordance with an aggregate principal amount equal to the principal amount of the Debt Commitment LetterFinancing, and enforcing Parent’s rights (5) perform its obligations under the Debt Commitment Letter Financing Commitments, including its obligations to agree to changes in the structure, terms and pricing contained in the definitive agreements relating Financing Commitments (it being understood that such obligations shall not include any obligation to cause any of its Affiliates to increase the Debt amount of their Equity Financing).
(bc) From At Seller's request, 60 Business Days following the date satisfaction or waiver of this Agreement until Buyer's conditions in Article VII (other than conditions that, by their nature, are to be satisfied on the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXClosing Date), Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or its Affiliates becomes aware; provided that none of Parent or Merger Sub Buyer shall be required to disclose or provide any fund the Closing Purchase Price by drawing on the "Senior Subordinated Facility" and the "Senior Unsecured Credit Facility"(as such information, the disclosure of which, terms are defined in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 anyLetter)) (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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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 IXThe Qwest Parties shall provide and shall cause their Affiliates to provide, without the prior written consent of the Company, Parent and its Affiliates shall not amend, modify, supplement, restate, assign, substitute or replace reasonable assistance to Buyer's efforts to obtain the Debt Commitment Letter or any Debt Financing Document if such amendment(including, modificationsubject to Section 5.10(c), supplement, restatement, assignment, substitution or replacement would (A) impose additional conditions precedent or expand upon the conditions precedent efforts to the funding obtain high yield bond financing as part of the Debt Financing), including facilitating customary due diligence and arranging for senior officers of Seller to meet with prospective lenders in customary presentations or 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 Qwest Parties shall, and 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 event of a registered public offering or an offering in accordance with Rule 144A under the 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 underwriters in any such offering a letter covering such matters as are reasonably requested by Company or its Affiliates or such underwriters, 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 (Bi) reduce the amount assistance provided by the Qwest Parties and their Affiliates, officers, employees and representatives are being provided at the request of Buyer, and (ii) none of the Qwest Parties shall have any liability to lenders or 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 terms and conditions 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions contemplated by this Agreement, including the Offer and the Merger, (D) materially adversely affect Parent’s ability Commitment Letter to consummate the transactions contemplated by this AgreementTransactions (such amount as is required, including the Offer and "ADDITIONAL EQUITY"). Buyer agrees to use commercially reasonable efforts to obtain equity commitments for the Merger or Additional Equity (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 nothing herein shall (i) obligate Buyer or its Affiliates to sell securities on terms less favorable than those terms received by the prior written consent of Persons that have provided the Company, amend, modify, supplement, restate, assign, substitute or replace the Debt ▇▇▇▇▇▇ Equity Financing Commitment Letter, including (1ii) obligate Buyer or its Affiliates to add and appoint conduct a public offering for equity securities, or (iii) obligate Affiliates of Buyer to contribute additional arrangers, bookrunners, underwriters, agents, lenders and similar Debt equity other than as provided in the ▇▇▇▇▇▇ Equity Financing Entities that have not executed the Debt Financing Documents as in effect on Commitment Letter). From the date hereof anduntil 30 days after the Dexter Closing Date, in connection therewith, amend Seller shall have the economic and other arrangements with respect right to such appointments, (2) modify pricing, (3) terminate or reduce any commitments under the Debt Financing in order commit to obtain alternative sources of debt financing in lieu of provide all or a portion of the Debt Additional Equity on the same terms and conditions as the equity provided for in the ▇▇▇▇▇▇ Equity Financing and/or Commitment Letter (4and on such other terms as specified in Exhibit R) increase provided, however, that Seller shall in no event be entitled to own equity securities in an amount greater than the aggregate 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 Debt Financing, 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 each case, so long as such amendments would not no event be reasonably expected entitled to result own equity securities in an Adverse Effect 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 Financing. Upon request 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 Company, Parent ▇▇▇▇▇▇ Equity Financing Commitment Letter (and on such other terms as specified in Exhibit R); provided that Seller shall keep in no event be entitled to own equity securities in an amount greater than the Company informed Seller Common Equity Limitation. Any Additional Equity subscribed for by Seller in reasonable detail excess of the status of Parent’s efforts to arrange the Debt FinancingSeller Common Equity Limitation shall be provided in Permissible Preferred Stock (as defined below). 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 Notwithstanding anything herein to the extent permitted by 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 7.18, 5.10(e) ("SELLER ADDITIONAL EQUITY") and such Alternative Financing shall be required Buyer exercises its right pursuant to comply with the provisions of 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 same extent as Seller Additional Equity to Seller, (ii) Buyer shall contribute the Debt Financing. Notwithstanding anything Seller Additional Equity to such wholly-owned subsidiary, and (iii) such wholly-owned subsidiary shall deliver 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 Seller Additional Equity (and 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 wholeClosing Purchase Price) to Parent than such term contained Seller in exchange for 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 LLC Interests and the Merger, are not subject to, cash price for the Seller Additional Equity. Seller shall have the right to assign all or conditioned on, Parent’s or Merger Sub’s receipt of financing.a ▇▇▇▇▇▇ 39 EXECUTION
Appears in 2 contracts
Sources: Purchase Agreement (Dex Media West LLC), Purchase Agreement (Dex Media Inc)
Financing. (a) From During the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXPre-Closing Period, Parent and its Affiliates shall use reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisable, advisable to arrange and obtain the Debt Equity Financing and to consummate the Debt Financing on or prior to the Closing 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by described in the Debt Equity Commitment Letter (or other terms and conditions as Parent shall agree so long as not in contravention of this Section 6.15(a)), including maintaining in effect the flex provisions (if any)) (other than as a result of Equity Commitment Letter in accordance with the Company’s breach terms and subject to the conditions thereof, complying with its obligations pursuant to the Equity Commitment Letter and enforcing its rights pursuant to the Equity Commitment Letter. Parent shall cooperate with and assist the Company in enforcing its third party beneficiary rights under the Equity Commitment Letter. Parent shall not permit any amendment or modification to be made to, or any waiver of any provision of this Agreement or failure remedy under, the Equity Commitment Letter if such amendment, modification or waiver would, or would reasonably be expected to satisfy the conditions set forth in Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify reduce the Company thereof and aggregate amount of the reasons thereforEquity Financing (except as expressly permitted by the Equity Commitment Letter), (ii) use reasonable best efforts to obtain alternative financing from impose new or additional conditions or other terms or otherwise expand, amend or modify any of 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 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, that, when taken together with the portion receipt of the Debt Equity Financing that remains available and or 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, is at least equal terms to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with Equity Financing in a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms manner that would reasonably be expected to reduce the aggregate principal amount of such alternative financing to be funded on the Closing Date (A) delay or impose additional conditions precedent to the funding of such alternative financing on prevent the Closing Date.
, or (dB) From make the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX, 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 timely funding of the Debt Equity 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (C) prevent or materially delay or make materially less likely the funding of the Debt Financing (or the satisfaction of the Financing Conditions) on conditions to obtaining the Closing Date or materially impairEquity Financing, delay or prevent the consummation of the transactions contemplated by this Agreementless likely to occur in any respect, 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 or (Eiii) materially adversely impact the ability of Parent Parent, Merger Sub 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, amendas applicable, modify, supplement, restate, assign, substitute or replace to enforce its rights under the Debt Equity 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 unless otherwise agreed to by the Company in writing. Parent shall give the Company prompt written notice of any material breach by any party to the Equity Commitment Letter, of which Parent becomes aware, or any termination of the Equity Commitment Letter or unavailability of any portion of the Equity Financing.
(b) Prior to the Closing, the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to cause their respective Representatives, to provide to Parent, all reasonable cooperation (x) reasonably requested by Parent and (y) as such amendments would not be reasonably expected is necessary and customary to result assist Parent in an Adverse Effect on connection with the arrangement of any debt financing in connection with the transactions contemplated herein (the “Debt Financing. Upon request ”), including to: (i) promptly (and in any event, no later than five (5) Business Days after the date hereof) provide Parent and its Financing Sources and their respective agents with the Financial Statements, (ii) participate in a reasonable number of meetings, presentations, drafting sessions, due diligence sessions, sessions with prospective Financing Sources, including direct contact between senior management and the other Representatives of the Company, on the one hand, and the actual and potential Financing Sources, on the other hand (including reasonable and customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders, purchasers and other financing sources with respect to, the Debt Financing (collectively, the “Financing Sources”)), and, if reasonably requested by Parent, sessions with rating agencies, in each case, at reasonable times and locations mutually agreed, (iii) assist with the preparation of materials for investor presentations, bank information memoranda, confidential information memoranda, marketing materials and similar documents required in connection with the Debt Financing and, if reasonably requested by Parent shall keep rating agency materials; (iv) provide appropriate representations in connection with the preparation of financial statements and other financial data of the Company informed (provided that in reasonable detail no event shall such representations with respect to financial information exceed the scope of the status representations and warranties contained in Section 4.9 and shall be effective no earlier than as of Parentthe Closing) and direct the Company’s efforts independent auditors to arrange provide reasonable and customary assistance and cooperation in connection with the Debt Financing. Any alternative, substitute or replacement debt financing obtained by ; (v) cooperate with the marketing efforts of Parent in accordance with this paragraph and its Financing Sources for any portion of the previous paragraph is the “Alternative Financing.” For purposes of this Agreement, references to “Debt Financing” shall include ; (vi) facilitate the financing contemplated by any Alternative Financing obtaining of guarantees, pledging of collateral in connection with the Debt Financing, including using commercially reasonable efforts to cause individuals who will continue as officers, directors or managers of the Company or its Subsidiaries after the Closing to execute and references to “Debt Commitment Letter”, “Debt Fee Letters”, “Debt Financing Documents”, “Debt Financing Entities”, “Debt Financing Sources”, deliver on behalf of the Company or “Financing” shall include the documents (or commitments or financing sourcesits Subsidiaries, as applicable, customary guarantee, pledge and security documents, currency or interest hedging arrangements or other definitive financing documents or other customary certificates, legal opinions or documents as may be reasonably requested by Parent (including a certificate of the chief financial officer with respect to solvency matters as of the Closing on a pro forma basis) to facilitate any such guarantee, obtaining and perfection of security interests in collateral from and after the Closing, in each case, as are necessary and customary in connection with the Debt Financing (provided that any Alternative rights, interests, obligations or covenants contained in such documents shall be effective no earlier than as of the Closing); (vii) provide, at least three (3) Business Days prior to the Closing, to Parent and its Financing Sources all documentation and other information required by regulatory authorities under applicable “know your customer”, FinCEN and anti-money laundering rules and regulations, including the PATRIOT Act to the extent permitted by this Section 7.18such documentation or information is requested at least ten (10) Business Days in advance of Closing; (viii) use commercially reasonable efforts to cause individuals that will continue as officers, and such Alternative Financing shall be required directors or managers of the Company or its Subsidiaries to comply with the provisions of this Agreement take corporate action (subject to the same extent as occurrence of the Closing) reasonably necessary to permit the completion of the Debt Financing; (ix) assist with the payoff of existing Indebtedness of the Company and the Acquired Companies on the Closing Date and the release of related Liens on the Closing Date (including obtaining customary payoff letters, lien terminations and other instruments of discharge); and (x) to the extent applicable, provide customary authorization letters to the Parent and its Financing Sources authorizing the distribution of information to the Financing Sources and containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company, the Acquired Companies or any of their respective securities. The Company hereby consents to the reasonable use of the Company’s logos in connection with the arranging and consummation of 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 their marks. Notwithstanding anything to the contrary contained in this Agreementherein, in no event shall Parent (A) any officer or its Affiliates employee of an Acquired Company be required to pay execute any fees agreement or document to the extent such agreement or document is not contingent upon the Closing or would be effective prior to the Closing, or otherwise require any such person to bear or assume any personal liability (other than the customary authorization letters referred to above), (B)(i) the pre-Closing board of directors of the Company and (ii) the pre-Closing directors, managers and general partners of the Acquired Companies be required to adopt resolutions or (C) the Company or any interest rates applicable Acquired Company be required to prepare any pro-forma financial statements to comply with its obligations hereunder (subject to the Alternative Financing obligations hereunder to cooperate in excess the preparation thereof).
(c) Nothing in this Agreement (including this Section 6.15 will require cooperation of those contemplated the Company or any of its Subsidiaries to the extent it would (i) require the Company or any of its Subsidiaries to take any action that would reasonably be expected to conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, the organizational documents of the Company or any of its Subsidiaries, any material contract, or any Applicable Law, to waive or amend any term of this Agreement, or to cause any representation or warranty in this Agreement to be breached by the Company, (ii) unreasonably interfere with the conduct of the business or operations of the Company or any of its Subsidiaries, (iii) result in any officer, manager or director (or Person occupying a similar position) of the Company or any its Subsidiaries incurring (or potentially incurring) personal liability with respect to any matters relating to the Debt Commitment Letter as Financing or the approval thereof, (iv) require the Company or any of its Subsidiaries or any of their respective Affiliates to incur any liability or commit to any obligation that is not contingent upon the occurrence of the Closing, (v) require providing access to or disclose information that the Company is advised by legal counsel would jeopardize any attorney-client privilege of, or violate confidentiality requirements binding on, the Company or any of its Subsidiaries (provided that, in effect on either case, the date hereof Company and its Subsidiaries shall reasonably cooperate in seeking alternative means (including through entering into a common interest agreement or such other means to allow disclosure but not waive attorney-client privilege) whereby such information will be provided or disclosed to Parent without violating any such agreement or waiving such attorney-client privilege), or (vi) require any such Person to change any fiscal period.
(d) Parent shall reimburse the market flex provisions (if any)) Acquired Companies for all reasonable out-of-pocket and documented expenses incurred in connection with the actions taken at Parent’s request pursuant to this Section 6.15. Parent shall indemnify and hold harmless the Acquired Companies and their respective Representatives from and against any and all losses suffered or agree to any term incurred by them in connection with the arrangement of the Debt Financing (including any market flex term action taken in accordance with this Section 6.15) and any information utilized in connection therewith (if anyother than information provided by or on behalf of the Company or any of its Subsidiaries expressly for use in connection therewith), except to the extent arising from the gross negligence, bad faith or willful and intentional misconduct of any Acquired Company or their respective Representatives as determined by a court of competent jurisdiction in a final non-appealable court order.
(e) less favorable To the extent there are any receivables, payables or loans between the Company or any of its Subsidiaries, other than Bayswater and any of its Subsidiaries (taken as a wholethe “Bayswater Entities”), on the one hand, and any of the Bayswater Entities, on the other hand (the “Intercompany Payables, Receivables and Loans”), the Company shall cause all such Intercompany Payables, Receivables and Loans to be either (i) to Parent than such term contained fully paid and satisfied by the party that is the obligor or (ii) extinguished without any liability by the payee by (A) in the Debt Commitment Letter case of Subsidiaries of the Company, causing such Intercompany Payables, Receivables and Loans to be distributed to the Company and (B) contributing, directly or indirectly through one or more Subsidiaries, such Intercompany Payables, Receivables and Loans to the capital of the relevant obligee, in each case, as in effect of the close of business on the date hereof (including Business Day immediately preceding 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 financingClosing Date.
Appears in 2 contracts
Sources: Merger Agreement (Goldfield Corp), Merger Agreement (Goldfield Corp)
Financing. (a) 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 use its reasonable best efforts to takeobtain the Financing on the terms and conditions described in the Financing Commitments, or cause to be taken, all actions, and use including using its 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 Debt Financing on or prior to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: (i) comply to negotiate definitive agreements with respect thereto on the terms and maintain conditions contained in effect the Debt Commitment Letter (subject to any amendmentFinancing Commitments, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below); (ii) satisfyto satisfy all conditions applicable to Parent, or obtain a waiver thereofMerger Sub in such definitive agreements, on a timely basis all Financing Conditions to the extent within the control of Parent and its Affiliates; (iii) negotiateto comply with its obligations under the Financing Commitments, 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 to obtain alternative financing commitments on terms no less favorable to Parent, Merger Sub or the event that Company than the Offer Conditions have been satisfied current Financing Commitments if the current Financing Commitments become unavailable, and (v) to not agree to any amendment or waived ormodification to be made to, upon funding would be satisfiedor any waiver of any material provision or remedy under the Financing Commitments, consummate if such amendment, modification, waiver or remedy reduces the Debt aggregate amount of the Financing (including by instructing or amends the Debt Financing Sources conditions precedent to fund the Debt Financing in accordance with a manner that would reasonably be expected to delay or prevent 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 consummation of the Effective Time Merger or make the termination funding of this Agreement in accordance with Article IX, the Financing less likely to occur. Parent and its Affiliates shall give the Company prompt notice upon becoming aware of any material breach, repudiation or threatened material breach or repudiation 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 Debt Commitment Letter Company copies of which Parent or its Affiliates becomes aware; provided that none of Parent or Merger Sub shall be required all documents related to disclose or provide the Financing Commitments and the Financing (other than any such information, the disclosure of which, in the judgement of Parent upon advice of outside counsel, is ancillary documents subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) 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 Letter Letters, (including the flex provisions (if any)A) (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 Section 8.1 and Annex 1), then Parent and its Affiliates Merger Sub shall (i) promptly notify the Company thereof and the reasons therefor, (iiB) Parent and Merger Sub shall use their reasonable best efforts to seek to arrange and obtain alternative financing from the same or alternative Debt Financing Entities sources on terms and conditions, taken as a whole, no less favorable to Parent Parent, Merger Sub or the Company than the current Financing Conditions, Commitments in an amount sufficient to consummate the merger which would not involving any conditions that would 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate principal amount of such alternative financing to be funded on the Closing Date prevent, materially impede 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions contemplated by this Agreement. Parent shall give the Company prompt notice of any material breach by any party to the Financing Commitments or of any condition not likely to be satisfied, in each case, of which Parent or Merger Sub becomes aware or any termination of the Financing Commitments. Parent and Merger Sub acknowledge and agree that the obtaining of the Financing, or any 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 Offer “New Financing 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.
(b) The Company shall provide, and shall cause its Subsidiaries and each of its and their respective Representatives, including legal and accounting, to provide, all cooperation reasonably requested by Parent and that is customary in connection with the arrangement of the Financing, and the Merger, (D) materially adversely affect Parent’s ability to consummate the other transactions contemplated by this Agreement, including the 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 such requested cooperation does not unreasonably interfere with the prior written consent ongoing operations of the Company, amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter, including (1i) providing information as promptly as practicable relating to add the Company and appoint additional arrangersits Subsidiaries to the parties providing the Financing, bookrunners(ii) participating in a reasonable number of meetings, underwriters, agents, lenders drafting sessions and similar Debt Financing Entities that have not executed the Debt Financing Documents as in effect on the date hereof and, due diligence sessions in connection therewith, amend with the economic and other arrangements with respect to such appointmentsFinancing, (2iii) modify pricing, providing assistance in the preparation of (3A) terminate one or reduce more offering documents or confidential information memoranda for 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 (4including the execution and delivery of one or more customary representation letters in connection therewith) increase and (B) materials for rating agency presentations, (iv) reasonably cooperating with the aggregate amount marketing and syndicating efforts for any of the Debt Financing, including providing (A) assistance in each casethe preparation for, so long as such amendments would not be reasonably expected and participating in, meetings, due diligence sessions and similar presentations to result in an Adverse Effect on Financing. Upon request and with, among others, prospective lenders, investors and rating agencies and (B) for the use of the Company, Parent shall keep ’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 informed in reasonable detail or its Subsidiaries or the reputation or goodwill of the status Company or any of Parent’s efforts its Subsidiaries and its or their marks), (v) executing and delivering (or obtaining from advisors), and causing its Subsidiaries to arrange 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 Debt Financing. Any alternative, substitute or replacement debt financing obtained pledge of collateral and other matters ancillary to the Financing as may be reasonably requested by Parent in accordance connection with this paragraph the Financing and otherwise facilitating the previous paragraph is the “Alternative Financing.” For purposes pledge of this Agreement, references to “Debt Financing” shall include the financing collateral and providing of guarantees contemplated by any Alternative Financing and references to “the Debt Commitment Letter”; provided, “Debt Fee Letters”however, “Debt Financing Documents”that no obligation of the Company or any of its Subsidiaries under any such certificate, “Debt Financing Entities”, “Debt Financing Sources”, document or “Financing” shall include instrument (other than the documents (or commitments or financing sources, as applicablerepresentation letters referred to above) in connection with any Alternative Financing to the extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with effective until the provisions Effective Time and none of this Agreement to the same extent as the Debt Financing. Notwithstanding anything to the contrary contained in this Agreement, in no event Company or any of its Subsidiaries shall Parent or its Affiliates be required to pay any fees commitment or other similar fee or incur any other liability in connection with the Financing prior to the Effective Time, and (vi) providing Parent with (A) customary pay-off letters with respect to the current credit facilities of the Company and its Subsidiaries and (B) recordable form lien releases, canceled notes and other documents reasonably requested by Parent prior to the Closing indicating that all Liens resulting from such credit facilities shall be satisfied, terminated and discharged on or prior to the Closing Date. The Company shall request, and Parent shall promptly, upon such request, reimburse Company for all reasonable and documented out-of-pocket costs incurred by the Company or any interest rates applicable to of its Subsidiaries in connection with the Alternative Financing foregoing cooperation and 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 them in excess of those contemplated by connection with such cooperation or the Debt Commitment Letter as in effect on Financing. All material, non-public information regarding 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) Company and its Subsidiaries provided 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 or Merger Sub expressly acknowledge or their Representatives pursuant to this Section 5.9 shall be kept confidential by them in accordance with the Confidentiality Agreements except for disclosure to potential financing sources as required in connection with the Financing Commitments (and agree that their obligations under this Agreement, including their obligations then subject to consummate the Offer and the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of financingcustomary confidentiality protections).
Appears in 2 contracts
Sources: Merger Agreement (Goldman Sachs Group Inc/), Merger Agreement (Waste Industries Usa Inc)
Financing. (a) From Without limiting Sections 6.3, 6.6 and 6.14, subject to applicable Law, the date Company agrees to (i) provide reasonable cooperation, and to cause its Subsidiaries and their respective officers and employees to provide reasonable cooperation and (ii) use its commercially reasonable efforts to cause its independent auditors to provide reasonable cooperation, in connection with the arrangement of any financing to be consummated in order to fund the Merger Consideration to be paid pursuant to this Agreement until (each, a “Financing”), including without limitation, reasonable participation (at Parent’s sole cost and expense) in meetings and road shows; making available information relating to the earlier Financing reasonably requested by Parent; and reasonable assistance (at Parent’s sole cost and expense) in the preparation of the Effective Time or the termination offering memoranda, private placement memoranda and similar documents of this Agreement in accordance with Article IX, Parent. Parent and its Affiliates shall will use 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 Debt Financing on or prior minimize any disruption to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: (i) comply with and maintain in effect businesses of 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 Company and its Affiliates; (iii) negotiateSubsidiaries which may result from the requests for access, execute data and deliver Debt Financing Documents to information under this Section 6.13(a). Notwithstanding the extent foregoing, in no event shall the Company be required to pay provide any cooperation with any Financing that involves the Required Amount (after taking into account registration of any cash on hand, available lines securities 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)Securities Act.
(b) From Parent agrees to use its best efforts to arrange the date of this Agreement until Financing on the earlier of terms and conditions no less advantageous than those described in the Effective Time or the termination of this Agreement in accordance Commitment Letter, including using reasonable best efforts to (i) negotiate definitive agreements with Article IX, respect thereto on terms and conditions contained therein and (ii) to satisfy all conditions applicable to Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or its Affiliates becomes aware; provided that none of Parent or Merger Sub shall be required to disclose or provide any in such information, the disclosure of which, in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) definitive agreements that are within its control. In the event all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by in 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 Section 8.1 and Annex 1)Letter, then Parent and shall use its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) use reasonable best efforts to arrange to obtain any such portion from 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide . Parent shall give the Company with a true and complete copy of, a new financing commitment that provides for such alternative financing; provided that prompt notice of 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 material breach by any dates related thereto) may be redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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 party of the Effective Time or the termination of this Agreement in accordance with Article IX, 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 termination 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 on a reasonably current basis in reasonable detail of the status of Parent’s its efforts to arrange the Debt Financing. Any alternativeFor the avoidance of doubt, substitute or replacement debt financing obtained by Parent in accordance with this paragraph and if 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 sourcesany alternative financing) has not been obtained, as applicable) in connection with any Alternative Financing to the extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 shall continue to be obligated to consummate the Offer Merger on the terms contemplated by this Agreement and subject only to the Merger, are not subject to, satisfaction or conditioned on, waiver of the conditions set forth in Sections 7.1 and 7.2 of this Agreement and to Parent’s or Merger Sub’s receipt rights under applicable subsections of financingSection 8.1.
Appears in 2 contracts
Sources: Merger Agreement (Andrx Corp /De/), Merger Agreement (Watson Pharmaceuticals Inc)
Financing. Not later than the earlier of (ai) From the 30th calendar day after the mailing of the Proxy Statement to the stockholders of Parent and the Company and (ii) the date of this Agreement until the earlier of the Effective Time two Stockholder Meetings, Parent shall enter into one or more definitive financing agreements (the termination "Definitive Financing Agreements") pursuant to which Parent shall have the right to borrow as of this Agreement in accordance with Article IXthe Closing Date an aggregate amount sufficient to refinance on terms reasonably acceptable to Parent, the Company's senior bank credit facility, the 9 1/2% Senior Subordinated Notes due 2006 and any other indebtedness of the Company, Parent and its Affiliates Subsidiaries if (A) as a result of the Merger such indebtedness would be in default (or that with notice of the passage of time or both would be in default) or entitle the holder of such indebtedness to require Parent, the Company or any of their Subsidiaries to repurchase such indebtedness and (B) Parent or the Company shall not, as of the Closing Date, have obtained consents, modifications or waivers relating to the Merger with respect to such indebtedness. Parent, Sub and the Company shall each use reasonable its best efforts to take, satisfy on the earlier of the date required (if so required) or cause the Closing Date all requirements of the Definitive Financing Agreements to be takensatisfied or complied with by it thereunder which are conditions to closing thereunder; provided, all actionshowever, that the Company's obligations under this sentence shall apply only to such requirements which Parent has informed the Company and to which the Company consents (not to be unreasonably withheld). The Company shall use reasonable its best efforts to do, or cause to be done, all things reasonably necessary or advisableassist the Parent and Sub, to arrange the extent reasonably requested by them, in the negotiation and obtain preparation of the Debt Definitive Financing Agreements and to consummate the Debt Financing in effecting such financing on or prior to the Closing 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 2 contracts
Sources: Merger Agreement (Paragon Health Network Inc), Merger Agreement (Mariner Health Group Inc)
Financing. (a) From To the date of this Agreement until extent that Parent does not have cash currently available that is sufficient to enable it to consummate the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXMerger, Parent and its Affiliates shall use its reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, done all things reasonably necessary necessary, proper or advisable, advisable to arrange and obtain procure and have available, as of the Debt Closing, funds sufficient to pay the Required Amount. In furtherance of the foregoing, Parent shall use its reasonable best efforts to (i) maintain in full force and effect the Commitment Letter, (ii) satisfy on a timely basis (or, if deemed advisable by Parent, seek a waiver of) all conditions set forth in the Commitment Letter, (iii) cause the Financing and Sources to consummate fund, subject to the Debt satisfaction or waiver of the conditions set forth in the Commitment Letter, the Financing on or prior to before the Closing Date. Such actions shall include, but not be limited to(iv) negotiate and enter into the definitive agreements with respect to the Financing (collectively, using reasonable best efforts to: the “Debt Documents”) (i) comply with and maintain in effect and comply in all material respects with the Debt terms thereof) on terms and conditions contemplated by the Commitment Letter (subject or, if available, on other terms that (1) would not reasonably be expected to materially delay or adversely affect the ability of Parent to consummate the transactions contemplated hereby and (2) are not less favorable to Parent than the terms and conditions (including “flex” provisions) described in the Commitment Letter), which agreements shall be in effect no event later than the Closing (provided that, any Debt Documents relating to any bridge facility shall not be required until reasonably necessary in connection with the funding of the Financing), (v) enforce its rights under the Commitment Letter and the Debt Documents in the event of a breach by any Financing Source under the Commitment Letter or Debt Documents relating thereto (it being understood and agreed that under no circumstances shall this clause (v) be construed to require Parent, Merger Sub or any of their respective affiliates to initiate or maintain any Action against any Financing Source) and (vi) furnish to the Company copies of all executed material Debt Documents (and, upon the reasonable written request of the Company, drafts thereof to the extent reasonably practicable). Prior to the Closing, Parent shall not agree to, or permit, any amendment, supplementreplacement, modification or supplement of, or waiver under, the Commitment Letter (it being understood that the exercise of any “flex” provisions shall not be deemed to be an amendment, replacement, substitutionmodification, termination supplement or other modification waiver) without the prior written consent of the Company, in each case, which would: (A) reduce the net cash proceeds of the Financing provided for in the Commitment Letter (including by changing the amount of fees or waiver original issue discount contemplated by the Commitment Letter) to an amount such that is Parent will not prohibited by clause (d) below); (ii) satisfyhave available, or obtain a waiver thereofas of the Closing, 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 funds sufficient to pay the Required Amount Amount; (after taking into account any cash on hand, available lines B) adversely expand the conditions to the funding 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 beyond those expressly 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 Letter, adversely amend or waived or, upon funding would be satisfied, consummate the Debt Financing modify any of such conditions (including by instructing the Debt Financing Sources making any such conditions less likely 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 be satisfied) or impose any new or additional condition to the Debt Financing).
(b) From receipt or funding of the date of Financing at the Closing, in each case, in a manner that would or would be reasonably likely to make it less likely that the Financing would be funded or would otherwise prevent, materially delay or impair the transactions contemplated by this Agreement until or otherwise adversely affect the earlier ability of Parent to consummate the Effective Time transactions contemplated herein; or the termination of this Agreement (C) adversely impact in accordance with Article IX, Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to respect the Debt Commitment Letter of which Parent or its Affiliates becomes aware; provided that none ability of Parent or Merger Sub to enforce its rights against any of the Financing Sources; provided that Parent and Merger Sub may amend, supplement or modify the Commitment Letter with respect to “flex” rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement. Parent shall be required deliver to disclose or provide any such informationthe Company true, the disclosure of which, in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation correct and complete copies of any confidentiality obligation.
(c) In amendment, modification, supplement, consent or waiver to or under the event all or Commitment Letter as promptly as practicable after execution thereof. Without limiting the foregoing provisions of this Section 6.14, if any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by in 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 Section 8.1 and Annex 1after taking into account “flex” provisions), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) use reasonable best efforts to arrange to obtain alternative financing financing, including from the same or alternative Debt Financing Entities sources, on terms and conditionsconditions (including fees and the “flex” provisions) not less favorable, taken as a whole, no less favorable to Parent than the Financing Conditions, not involving any conditions that would constitute an Adverse Effect on Financing (as defined below) as compared to those set forth in the Debt Commitment Letter delivered (in the reasonable judgment of Parent), in an amount such that Parent will have available, as of the Closing, funds sufficient to pay the Required Amount (“Alternative Financing”) and, for all purposes of this Agreement, all references to the Financing (including the Financing Sources) shall be deemed to include such Alternative Financing (and the financial institutions and other entities with respect to such Alternative Financing) and all references to the Commitment Letter shall include the applicable commitment documents for the Alternative Financing. Parent shall provide a true, correct and complete copy of the commitment letter and related fee letter with respect to any such Alternative Financing to the Company on the date hereof, that, when taken together (with the portion of the Debt Financing that remains available and any cash on hand, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) only fee amounts and other sources of immediately available funds, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such eventeconomic terms, and (iii) use reasonable best efforts to obtain, the rates and when obtained, provide amounts included in the Company with a true and complete copy of, a new financing commitment that provides for such alternative financing; provided that any provisions set forth in such new financing commitment relating to fees, pricing terms, “market flex” provisions, redacted in a customary manner for transactions of this nature, none of which redacted provisions (if any) and other terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce adversely affect the aggregate principal amount of such alternative financing to be funded on the Closing Date conditionality, availability, enforceability, termination 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, 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 Financing) as promptly as practicable after execution thereof. Notwithstanding anything to 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions contemplated by contrary in this Agreement, including the Offer and the Merger, (Dcompliance by Parent with this Section 6.14(a) materially adversely affect Parent’s ability shall not relieve Parent or Merger Sub of their obligation to consummate the transactions contemplated by this Agreement, including whether or not the 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, 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 extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same extent as the Debt Financingavailable. Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 6.14 shall require, and in no event shall the reasonable best efforts of Parent be deemed or its Affiliates be required construed to require, Parent to pay any fees or any interest rates applicable to the Alternative Financing sources of debt in excess of those contemplated by the Debt Commitment Letter. Parent shall, upon the reasonable written request of the Company, keep the Company informed on a reasonably current basis in reasonable detail of any material developments in its efforts to arrange the Financing.
(b) Prior to the Closing, the Company shall, and shall cause its Subsidiaries to, use its and their reasonable best efforts to provide to Parent, at Parent’s sole cost and expense, all cooperation as is reasonably requested by Parent in connection with arranging, underwriting, obtaining, syndicating and consummating the Financing, including: (i) as promptly as reasonably practicable, furnishing Parent and the Financing Parties with (A) such financial statements, financial data, audit reports and other financial information regarding the Company and its Subsidiaries of the type required by SEC Regulation S-X and SEC Regulation S-K under the Securities Act for registered offerings of debt securities on a Form S-3 of the type contemplated by the Commitment Letter, such financial statements to include (1) audited consolidated balance sheets and related statements of operations, comprehensive income (loss), equity and cash flows and related notes thereto of the Company for the three (3) fiscal years most recently ended at least sixty (60) days prior to the Closing Date (it being acknowledged that Parent has received such financial statements for the fiscal years of the Company ended December 31, 2018, December 31, 2017 and December 31, 2016) and (2) unaudited consolidated balance sheets and related statements of operations, comprehensive income (loss), equity and cash flows and related notes thereto of the Company for each subsequent fiscal quarter ended at least forty (40) days prior to the Closing Date (other than the fourth fiscal quarter of any fiscal year) (it being acknowledged that Parent has received such financial statements for the fiscal quarters of the Company ended March 31, 2018, June 30, 2018 and September 30, 2018) (other than customary exceptions in the case of a Rule 144A offering of high-yield debt securities, including, without limitation, the requirements of Sections 3-10 and 3-16 of Regulation S-X, Item 402 of Regulation S-K and information regarding executive compensation), (B) information regarding the Company and its Subsidiaries customarily included in information memoranda and other syndication materials for bank credit facilities, and (C) all other historical financial information regarding the Company reasonably required by Parent to permit Parent to prepare customary pro forma financial statements to the extent required by SEC rules and regulations or necessary or reasonably required by Parent or the Financing Sources to be included in any marketing materials or offering documents or of the type required by the Commitment Letter (collectively, the “Required Information”) required to consummate the Financing; provided that, without limiting the foregoing, the Company shall not be obligated to prepare any pro forma financial information or projections (for which, for the avoidance of doubt, Parent shall be solely responsible), (ii) making appropriate members of senior management of the Company available at reasonable times and locations and upon reasonable prior notice, to participate in a reasonable number of meetings (including one-on-one meetings or conference calls with Financing Parties and potential Financing Parties), drafting sessions, presentations, road shows, rating agency presentations and due diligence sessions and other syndication activities, (iii) assisting Parent and its Financing Parties in the preparation of customary and appropriate (A) offering documents, offering memoranda, offering circulars, private placement memoranda, registration statements, prospectuses, syndication documents and other syndication materials, including information memoranda, lender and investor presentations, bank books and other marketing documents, and similar documents reasonably required for the Financing and (B) materials for rating agency presentations, (iv) cooperating with the marketing efforts of Parent and the Financing Parties, including, to the extent applicable, obtaining customary representation and authorization letters and arranging for customary auditor consents for use of the Required Information and other financial data in the marketing and offering documentation, including any registration statement filed with the SEC in connection with the Financing, (v) assisting in obtaining or updating corporate and facility credit ratings, (vi) using reasonable best efforts to cause the Company’s independent registered accounting firm and internal and/or external counsel of the Company to provide assistance to Parent, including in connection with comfort letters and opinions of counsel to be delivered in connection with the Financing, including by (A) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary comfort letters (including “negative assurance” comfort and change period comfort) in connection with any capital markets transaction comprising a part of the Financing (including any offering or private placement of debt securities pursuant to Rule 144A) to the applicable Financing Parties and to participate in a reasonable number of due diligence sessions and (B) providing customary back-up certificates, (vii) reasonably cooperating with internal and external counsel of Parent or any Financing Party in connection with providing back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver in connection with the Financing, (viii) providing, as promptly as practicable, and in effect any event at least five (5) business days prior to the Closing, to the extent requested in writing at least ten (10) business days prior to the Closing, all documentation and other information regarding the Company and its Subsidiaries that any Financing Party reasonably determines is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act of 2001, and, to the extent required by any Financing Party, a beneficial ownership certificate (substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association) in respect of any of the Company or any of its Subsidiaries that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation (31 C.F.R. § 1010.230), (ix) assisting in the negotiation and preparation of, and executing and delivering, any credit agreement, indenture, note, purchase agreement, underwriting agreement, pledge and security documents, guarantees, hedging agreement, customary closing certificates and any other certificates, exhibits, schedules, letters and documents as may be reasonably requested by Parent, in each case contemplated in connection with the Financing, (x) facilitating Parent to benefit from the existing lending relationship of the Company and its Subsidiaries, (xi) informing Parent, as promptly as practicable, if the chief executive officer, chief financial officer, treasurer or controller of the Company or any member of the Company Board shall have actual knowledge of any facts as a result of which a restatement of any financial statements to comply with GAAP is probable or under active consideration and (xii) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent to permit the consummation of the Financing and to permit the proceeds thereof to be made available on the Closing Date. For the avoidance of doubt, to most effectively access the financing markets, Parent may require the cooperation of the Company and its Subsidiaries under this Section 6.14 at any time, and from time to time and on multiple occasions, between the date hereof and the Closing Date.
(including c) All documentation prepared by the market flex provisions Company, its Subsidiaries and/or any of their respective Representatives in connection with this Section 6.14 shall be subject to the prior review, comment and approval of Parent.
(if any)d) The actions contemplated in this Section 6.14 with respect to the Financing shall not (i) require such cooperation from the Company to the extent it would require the Company, any of its Subsidiaries, or agree any of its or their respective Representatives, to incur any term (including monetary liability, pay any market flex term (if any)) less favorable (taken as a whole) fees, reimburse any expenses, or provide any indemnity, in each case, prior to Parent than such term contained in the Debt Commitment Letter as in effect Closing that is not contingent on the date hereof (including Closing or for which Parent is not obligated to reimburse or indemnify the market flex provisions (if any)). Parent and Merger Sub expressly acknowledge and agree that their obligations Company or its Subsidiaries under this Agreement, including or take any actions that would cause the Company or any of its Subsidiaries to breach this Agreement or become unable to satisfy a condition to the Closing, (ii) involve any binding commitment or agreement by the Company, any of its Subsidiaries, or any of its or their obligations to consummate respective Representatives (other than customary authorization and representation letters and other than other actions by officers or directors continuing employment with Parent following the Offer and Closing that, in the Mergercase of such other actions, are contingent upon the Closing and would not subject tobe effective prior to the Closing) which commitment or agreement is not conditioned on the Closing and does not terminate without liability to the Company, any of its Subsidiaries, or conditioned onany of its or their respective Representatives upon the termination of this Agreement, Parent’s (iii) require such cooperation to the extent it would unreasonably interfere with the operations or Merger Sub’s receipt business of financing.the Company, (iv) require the Company, an
Appears in 2 contracts
Sources: Merger Agreement (Worldpay, Inc.), Merger Agreement (Fidelity National Information Services, Inc.)
Financing. (a) From 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 date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX, Parent applicable Owner and its Affiliates shall use 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 Debt Financing on or prior to the Closing 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or its Affiliates becomes aware; provided that none of Parent or Merger Sub Manager shall be required to disclose or provide 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 informationencumbered 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 disclosure Mortgage; and
B. If there is a foreclosure of which, a Mortgage in connection with which title or possession of such Hotel is transferred to the judgement of Parent upon advice of outside counsel, is subject Mortgagee (or its designee) or to attorney-client privilege a purchaser at foreclosure or which would be in violation of any confidentiality obligation.
to a subsequent purchaser from the Mortgagee (cor from its designee) In the event all or any portion (each of the Debt Financing becomes unavailable on foregoing, a “Subsequent Holder”), Manager shall not be disturbed in its rights under this Agreement, so long as (a) no Manager Event of Default (beyond the terms applicable notice and conditions contemplated by the Debt Commitment Letter (including the flex provisions (cure period, if any)) has occurred thereunder which entitles the applicable Owner to terminate this Agreement, and (other than 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 Companyprior 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 breach 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 any provision a non-monetary default which was not caused by a Manager Event of Default pursuant to the terms of this Agreement or failure to satisfy the conditions set forth in Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 Adverse Effect on Financing (as defined below) as compared to those set forth in the Debt Commitment Letter delivered such Subsequent Holder succeeds to the Company on the date hereof, that, when taken together with the portion interest of the Debt Financing that remains available and any cash on handapplicable Owner thereunder, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) and other sources of immediately available funds, is at least equal to the Required AmountMortgagee or Subsequent Holder, as promptly as practicable following the occurrence of such eventapplicable, and (iii) use reasonable best efforts to obtain, and when obtained, provide Manager shall agree that the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate principal amount of such alternative financing applicable Hotel will continue to be funded on the Closing Date or impose additional conditions precedent subject 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 a stand-alone agreement with respect to such appointments, (2) modify pricing, (3) terminate or reduce any commitments under Hotel on substantially 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 same terms and provisions 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 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to (but neither the same extent as the Debt Financing. Notwithstanding anything to the contrary contained in this Agreement, in no event shall Parent or its Affiliates Mortgagee nor Subsequent Holder will be required responsible 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 anypast due amounts hereunder)) 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 2 contracts
Sources: Master Management Agreement (Service Properties Trust), Master Management Agreement (Service Properties Trust)
Financing. (a) 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 use its reasonable best efforts to take(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 cause amended as provided below), (ii) negotiating definitive agreements with respect 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 Debt Financing on or prior to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: (i“Definitive Agreements”) comply substantially consistent 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 and conditions contained in the Debt Commitment Letter (including including, as necessary, any “market flex” provisions contained in any related fee letter), (if anyiii) related theretosatisfying on a timely basis (or obtaining a waiver of) or on such other terms acceptable to Parent that would not constitute an Adverse Effect on Financing as compared to those set forth all conditions in the Debt Commitment Letter delivered to the Company on the date hereof; 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 Offer Conditions Commitment Letters (other than, with respect to the Debt Financing, the availability of the Cash Equity) have been satisfied or waived or, upon funding would be satisfied, consummate the Debt Financing (including by instructing 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 accordance with 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 consummation 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, and enforcing Parent’s rights under (y) amend or modify the Debt Commitment Letter and to implement the definitive agreements relating "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).
, (bC) From with respect to replacements, the date replacement debt commitments otherwise satisfy the terms and conditions of this Agreement until Alternative Debt Financing set forth below, (D) such amendment does not adversely affects the earlier ability of Parent to enforce its rights against other parties to the Effective Time 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 this Agreement in accordance with Article IX, Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter or (G) such Amendment cannot reasonably be expected to prevent, impede or delay the consummation of which Parent or its Affiliates becomes aware; provided that none of Parent or the Merger Sub shall be required to disclose or provide any such information, and the disclosure of which, in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) other transactions contemplated by this Agreement. In the event all or that any portion of the Debt Financing becomes unavailable on or any of the terms and conditions contemplated by Definitive Agreements shall be withdrawn, repudiated, terminated or rescinded, regardless of the Debt Commitment Letter (including the flex provisions (if any)) reason therefor (other than as a result the right of the Company’s breach of any provision of Parent to terminate this Agreement or failure pursuant to satisfy the conditions set forth in Section 8.1 and Annex 1), then 7.4 hereof) Parent and its Affiliates shall will (i) promptly notify the Company thereof and the reasons therefor, (ii) use its reasonable best efforts to obtain alternative financing from the same or and/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 debt financing (in 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, thatamount, when taken together with the portion of the Debt Financing that remains available and any cash on handCash Equity, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) and other sources of immediately available funds, is at least equal to the Required Financing Amount, as ) (the “Alternative Debt Financing”) and (ii) promptly as practicable following notify the occurrence Company of such eventunavailability 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 promptly notify the Company in writing (i) of any breach or default by any party to a material provision of the Commitment Letter, (ii) of the receipt by any of Parent or Merger Sub or any of their Affiliates of any written notice from any Debt Financing Source with respect to any actual or threatened breach, dispute, termination or repudiation by any 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 any Definitive Agreement with respect thereto, (iii) use reasonable best 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 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 obtain, arrange the Financing and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such alternative any other financing; provided that Parent shall not be obligated to provide 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 redacted, so long as such redaction does not extend to any terms information that would jeopardize any attorney-client privilege on a reasonably be expected to reduce the aggregate 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 current basis of the Effective Time or status of its efforts to consummate the termination of Financing. Notwithstanding the foregoing, compliance by Parent with this Agreement in accordance with Article IX, without the prior written consent of the Company, Parent and its Affiliates Section 5.17(b) 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 relieve Parent 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions contemplated by this Agreement, including the Offer and the Merger, (D) materially adversely affect Parent’s ability its obligation to consummate the transactions contemplated by this Agreement, including whether or not the Offer Financing is available.
(c) The Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to provide, and shall use reasonable best efforts to cause its Subsidiaries and their respective Representatives to provide, all cooperation reasonably requested by Parent in connection with the Merger arrangement, marketing, preparation and closing of the Debt Financing as well as any necessary consents, amendments, repayments or terminations of existing financing arrangements) (E) materially adversely impact provided that such requested cooperation does not unreasonably interfere with the ability ongoing operations of Parent the Company or any of its Affiliates’ to enforce their respective rights against 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 or any (the “Marketing Material”) and otherwise assist in the marketing efforts of the other parties to the Parent and its Debt Commitment Letters or the definitive agreements with respect thereto (clauses (A) through (E), each an “Adverse Effect on Financing”); provided that no such Marketing Material shall be issued by the Company or its Subsidiaries;
(iii) assist Parent mayin connection with the preparation of (but not executing prior to the Closing), without 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 requested by Parent or the prior written consent Debt Financing Sources and otherwise reasonably cooperating with Parent and the Debt Financing Sources in facilitating the pledging of collateral and the Company, amend, modify, supplement, restate, assign, substitute or replace granting of security interests relating to the 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 repayment or defeasance of the Credit Facilities and release, discharge and termination of the related Liens, including (1i) delivering such payoff letters in accordance with Section 6.2, and (ii) delivering any UCC authorizations or other release and termination of the related Liens, and termination, defeasance or similar notices; and
(vii) promptly supplement the written information provided pursuant to add this Section 5.17 to the extent that 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. The foregoing notwithstanding, nothing in this Section 5.17 or otherwise shall require (i) the Company or any persons who are directors of the Company or any of its Subsidiaries prior to the Closing Date to pass resolutions or consents to approve or authorize any aspect of the Debt Financing; (ii) 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 appoint additional arrangers, bookrunners, underwriters, agents, lenders 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 Debt Financing Entities that have not executed fee or incur any other cost or expense in connection with the Debt Financing Documents 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 Company or any of its Subsidiaries to 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 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 effect on ARTICLE VI not to be satisfied; (vi) any Representative of the date hereof andCompany to deliver any certificate or take any other action in any personal capacity; (vii) the preparation, in connection therewithwith the Debt Financing, amend of quarterly or annual financial statements for the economic 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, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with the cooperation contemplated by this Section 5.17(d) (other arrangements 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 respect to such appointments, (2i) modify pricing, (3) terminate or reduce any commitments under the Debt Financing (including the arrangement or obtaining thereof), (ii) any action taken by them pursuant to this Section 5.17(d), or (iii) any information utilized 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 connection with the Debt Financing, in each case, so long other than as a result of fraud, bad faith, gross negligence or willful misconduct by or on behalf of 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 FinancingPerson.” 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 applicablee) in connection with any Alternative Financing to the extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same extent as the Debt Financing. Notwithstanding anything to the contrary contained in contrary, the Company shall be deemed to have complied with Section 5.17(c) for all purposes of this Agreement, in no event shall Parent or Agreement (including ARTICLE III) unless (i) the Company has materially breached its Affiliates be required to pay any fees or any interest rates applicable to the Alternative Financing in excess of those contemplated by obligations under Section 5.17(c) and (ii) 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 Financing has not been obtained and such failure arises primarily as a whole) to Parent than such term contained in result of the Debt Commitment Letter as in effect on the date hereof (including the market flex provisions (if any)Company’s willful breach of its obligations under Section 5.17(c). Parent and Merger Sub expressly For the 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 obligations under respective Representatives with respect to cooperation in connection with the arrangement of the Financing, and no other provision of this Agreement (including the exhibits 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, including their obligations other potential sources of capital, rating agencies and prospective lenders during syndication of the Debt Financing or any Alternative Debt Financing, subject to consummate and in accordance with customary confidentiality practices for syndicated processes of the Offer 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 MergerDebt Financing; provided, that such logos are used solely in a manner that is not subject to, intended to or conditioned on, Parent’s reasonably likely to harm or Merger Sub’s receipt disparage the Company or any of financingthe 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. If, at any time after the date of this Agreement, 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 credit sufficient to pay (a) From the Real Estate Purchase Price and all other necessary fees, expenses and other amounts payable by the PropCo Buyer in connection with the consummation of the Transactions and (b) the amount required to pay the purchase price and any related fees and expenses in connection with any executed acquisition transactions pending as of the date of this Agreement until (collectively, the earlier of “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 Effective Time or terms and conditions therein (which terms and conditions shall be reasonably acceptable to the termination of this Agreement in accordance with Article IXSeller), Parent and its Affiliates shall use reasonable best efforts to takeprovide, 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 Debt Financing on or prior to the Closing 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or its Affiliates becomes aware; provided that none of Parent or Merger Sub shall be required to disclose or provide any such informationprovided, the disclosure of which, PropCo Buyer with debt financing in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, thatamount sufficient, when taken together with the portion of the Debt Financing that remains unrestricted cash, cash equivalents or marketable securities together with available and any cash on hand, available lines of credit (including borrowings under Borrower’s its existing revolving credit and securitization facilities) and other sources of immediately available fundsagreement, is at least equal to fund the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 PropCo Buyer 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), (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 transactions 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 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 a “Debt Commitment Letters or the definitive agreements with respect thereto (clauses (A) through (E), each an “Adverse Effect on FinancingLetter”); provided that Parent may, without the prior written consent 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 CompanyReal Estate Purchase Price. Upon receiving such written request, amendPropCo 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, modify, supplement, restate, assign, substitute or replace correct and complete copies of the Debt Commitment Letter. Unless otherwise agreed by the Seller expressly in writing, including (1) to add and appoint additional arrangers, bookrunners, underwriters, agents, lenders and similar any Debt Financing Entities that have not executed the Debt Financing Documents as Commitment Letter shall remain in effect place on the date hereof andcommitted terms until the Closing Date. For the avoidance of doubt, 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 obligations 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 Seller 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) cooperate in connection with any Alternative Financing as set forth in Section 6.19 shall apply to the extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 requested by Seller pursuant to this Section 6.24. Notwithstanding 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 foregoing, in the Debt Commitment Letter as 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 effect on amount equal to or greater than the date hereof (including the market flex provisions (if any)). Parent PropCo Buyer Required Amount, then any such Seller request shall be automatically be deemed to have been fulfilled and Merger Sub expressly acknowledge and agree that their all of PropCo Buyer’s obligations under pursuant to this Agreement, including their obligations Section 6.24 shall automatically be deemed to consummate the Offer and the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of financingbe satisfied.
Appears in 2 contracts
Sources: Transaction Agreement (Penn National Gaming Inc), Transaction Agreement (Vici Properties Inc.)
Financing. (a) From 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 status of such financing. No later than five Business Days prior to the Initial 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) In the event that, (i) during the Replacement Equity Financing Period, Purchaser sells, or enters into a binding written agreement to sell, Equity Interests for proceeds of more than US$500,000,000 (such financing during such time period, “Subsequent Equity Financing”) and (ii) at any time during the 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 of Purchaser’s Subsidiaries incurred after the date of this Agreement until or (y) redeem or repay indebtedness of Purchaser (any Subsequent Equity Financing meeting the earlier conditions set forth in both of the Effective Time or the termination of this Agreement in accordance with Article IX, Parent and its Affiliates shall use 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 Debt Financing on or prior to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: clauses (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 “Replacement Equity Financing”), Purchaser shall, within five Business Days of such repurchase, redemption or repayment, pay to Yahoo! and/or YHK, as applicable, an amount in the Debt Commitment Letter (including any “market flex” provisions (if any) related thereto) or on such other terms acceptable cash equal 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 Parenteach Seller’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 pro rata share 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligationMake Whole Amount.
(c) In No Shares or Equity Interests sold by Purchaser as part of the event all financing of the Initial Repurchase (including in any Replacement Equity Financing) shall be sold to JT, JM, SB 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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 Datetheir respective Affiliates.
(d) From Following the date Initial Repurchase Closing, Purchaser shall cause JM on behalf of this Agreement until himself and the earlier of other AGH SAFE 75 Reporting Persons who are required to do so by Law to submit applications to amend the Effective Time or the termination of this Agreement in accordance with Article IX, 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 AGH SAFE Circular 75 Registration within 30 days upon the conditions precedent to the funding occurrence 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 FinancingAmendment Event.” 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 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 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) From the date Each of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IXParent, Parent Merger Sub 1 and its Affiliates Merger Sub 2 shall use reasonable best efforts to take, or shall cause to be taken, all actions, 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 Debt Financing on or prior 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. 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) satisfyto satisfy (or if determined advisable by Parent, or obtain a the waiver thereof, of) on a timely basis all conditions to obtaining the Debt Financing Conditions within Parent’s control and to comply with all of its obligations pursuant to the extent within Debt Commitment Letters and the control of Parent and its Affiliates; (iii) negotiate, execute and deliver Debt Financing Documents definitive agreements related thereto. In the event that all conditions to funding 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 commitments 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 Letters have been satisfied or waived or, upon funding would be satisfied, consummate each of Parent, Merger Sub 1 and Merger Sub 2 shall use its reasonable best efforts to cause the Debt Financing (including by instructing the Debt Financing Sources to fund the Debt Financing in accordance with required to consummate the 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 Sources to provide the Debt Commitment LetterFinancing). Each of Parent, Merger Sub 1 and enforcing Parent’s Merger Sub 2 shall use its reasonable best efforts to enforce all of its 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, Letters. Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter Letters or the definitive agreements related thereto of which Parent has become aware or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation termination of any confidentiality obligation.
(c) of the Debt Commitment Letters or such definitive agreements. In the event all or that any portion of the Debt Financing becomes unavailable on the terms unavailable, Parent, Merger Sub 1 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 Section 8.1 and Annex 1), then Parent and its Affiliates Merger Sub 2 shall (i) promptly notify the Company thereof and the reasons therefor, (ii1) use their 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amountobtain, as promptly as practicable following the occurrence of such event, and alternative debt financing for any such portion from alternative debt sources (iii“Alternative Financing”) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 handwill still enable Parent, available lines of credit (including under Borrower’s existing revolving credit Merger Sub 1 and securitization facilities) and other sources of immediately available funds), (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 transactions contemplated by this Agreement, including the Offer and the Merger, (D) materially adversely affect Parent’s ability Merger Sub 2 to consummate the transactions contemplated by this Agreement, including and (2) promptly notify the Offer 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 alternative source shall have committed to provide Parent, the Initial Surviving Corporation or the Surviving Company with Alternative Financing. Parent, Merger Sub 1 and Merger 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 (EII) materially 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 impact affects the ability of Parent Parent, Merger Sub 1 or any of its Affiliates’ Merger Sub 2 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 relating thereto. Parent shall provide the Company with respect thereto (clauses (A) through (E), each an “Adverse Effect on Financing”); provided that Parent may, without the prior prompt written consent notice of the Company, amend, modify, supplement, restate, assign, substitute receipt of any notice or replace the Debt Commitment Letter, including (1) to add and appoint additional arrangers, bookrunners, underwriters, agents, lenders and similar Debt other communication from any 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 Source with respect to such appointments, (2) modify pricing, (3) terminate Financing Source’s failure or reduce any anticipated failure to fund its commitments under the any Debt Financing Commitment Letters or definitive agreement 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 Financingconnection therewith. Upon request of the Company, Parent shall keep the Company reasonably informed in reasonable detail on a current basis of the status of Parent’s its efforts to arrange consummate the Debt Financing. Any alternative, substitute or replacement debt financing obtained by Parent .
(b) Notwithstanding anything contained 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 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same extent contrary, Parent expressly acknowledges and agrees that Parent’s, Merger Sub 1’s and Merger Sub 2’s obligations hereunder are not conditioned in any manner upon Parent, Merger Sub 1 or Merger Sub 2 obtaining any financing. The failure, for any reason, other than as the Debt Financing. Notwithstanding anything to the contrary contained in a result of any material breach of 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 Agreement by the Debt Commitment Letter as in effect Company, of Parent, Merger Sub 1 and Merger Sub 2 to have sufficient cash available on the date that the Closing is required to occur pursuant to Section 2.01 hereof (including and/or the market flex provisions (if any)) or agree failure to any term (including any market flex term (if any)) less favorable (taken as a whole) to Parent than such term contained in pay the Debt Commitment Letter as in effect aggregate Cash Consideration on the date that the Closing is required to occur pursuant to Section 2.01 hereof (including the market flex provisions (if any)). Parent shall constitute a Willful Breach of this Agreement by Parent, Merger Sub 1 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 financing2.
Appears in 2 contracts
Sources: Merger Agreement (Humana Inc), Merger Agreement (Aetna Inc /Pa/)
Financing. (a) 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 Buyer shall use its reasonable best efforts to (x) take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary or advisable, advisable to arrange and obtain the Debt Financing and to the Sale Leaseback Financing as promptly as practicable following the date of this Agreement and (y) consummate the Debt Financing and the Sale Leaseback Financing on or prior to the Closing Date. Such actions shall include, but not be limited to, including using its reasonable best efforts to: :
(i) comply with and maintain in effect the Debt Commitment Letter (subject and not permit or consent to any amendment or modification to be made to, not consent to any waiver of any provision or remedy under, and not replace, the Debt Commitment Letter, if such amendment, supplementmodification, waiver or replacement: (A) 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) to an amount that would cause Buyer to not have sufficient funds to pay the Purchase Price and to pay all fees and expenses required to be paid by the Buyer relating to the consummation of the transactions contemplated hereby and after giving effect to any increase in the amount of the Equity Financing or (B) imposes new or additional conditions or otherwise expands, substitutionamends or modifies any of the conditions to the receipt of the Debt Financing in a manner that would reasonably be expected to (1) materially delay or prevent the Closing, termination (2) make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (3) adversely impact the ability of Buyer to enforce its rights against other modification parties to the Debt Commitment Letter or waiver the definitive agreements with respect thereto when required pursuant to this Agreement (provided that is Buyer may (I) amend, restate, supplement or otherwise modify the Debt Commitment Letter to (x) (i) add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not prohibited by clause (d) below); executed the Debt Commitment Letter as of the date hereof, (ii) satisfyremove lenders, lead arrangers, bookrunners, syndication agents or similar entities who executed the Debt Commitment Letter as of the date hereof, or obtain (iii) to reallocate commitments or change, assign or reassign titles, duties or roles to, or between or among, any entities party thereto, (y) amend the economic or other arrangements with respect to the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or (II) make any changes in connection with any “market flex” provisions contemplated by any fee letter related to the Debt Financing (a waiver thereof“Fee Letter”), in each case, if such addition of additional parties, such removal of parties, such reallocation, such assignment, such reassignment, such amendment or such changes (x) do not reduce the Debt Financing to be funded at the Closing, (y) do not result in additional conditions or contingencies to the funding of the Debt Financing or modify in a manner adverse, in any material respect, to Buyer the conditions to funding set forth in the Debt Commitment Letter, or (z) would not, individually or in the aggregate, be reasonably expected to delay or prevent the Closing;
(ii) cause the Equity Financing to be consummated upon satisfaction of the Financing Conditions contained in the Equity Commitment Letter;
(iii) satisfy on a timely basis or prior to the Closing Date all Financing Conditions to the extent that are within the control of Parent and its Affiliates; Buyer’s control;
(iiiiv) 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 that reflect the terms consistent, in all material respects, with the terms contained in, or such other terms that are not materially less favorable to Buyer in the aggregate than, the Debt Commitment Letter Letter;
(including any v) if necessary to achieve a Successful Syndication (as such term is defined in the Fee Letter), accept to the fullest extent all modifications to the Debt Financing provided in the “market flex” provisions contemplated by the Fee Letter;
(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 (ivvi) in the event that the Offer conditions set forth in Section 8.01 and Section 8.02 and the Financing Conditions have been satisfied or, immediately upon funding would be satisfied, cause the Financing Sources to fund the full amount of the Debt Financing at or waived prior to the Closing (or such lesser amount as may be required to consummate the transactions contemplated hereby);
(vii) enforce its rights under the Commitment Letters in the event of a Financing Failure Event to the extent, in the case of the Debt Commitment Letter, such Financing Failure Event results from a breach of the Debt Commitment Letter by the Financing Sources;
(viii) maintain in effect and not terminate the Sale Leaseback Agreement and not permit or consent to any amendment or modification to be made to the Sale Leaseback Agreement that is materially adverse to the Buyer;
(ix) satisfy on or prior to the Closing Date all SLB Conditions that are within Buyer’s control and required to be satisfied on or prior to the Closing Date;
(x) in the event that the conditions set forth in Section 8.01 and Section 8.02 and the SLB Conditions have been satisfied or, upon funding would be immediately satisfied, consummate the Debt Financing cause (including by instructing the Debt Financing Sources to fund the Debt Financing in accordance with the Debt Commitment Letter, and enforcing Parent’s its rights under the Debt Commitment Letter and Sale Leaseback Agreement) the definitive agreements relating Sale Leaseback Purchaser to consummate the transactions under the Sale Leaseback Agreement simultaneously with the Closing hereunder; and
(xi) enforce its rights under the Sale Leaseback Agreement Letters in the event of a Financing Failure Event, to the Debt Financing)extent such Financing Failure Event results from a breach of the Sale Leaseback Agreement by the Sale Leaseback Purchaser.
(b) From Buyer, upon the date written request of this Agreement until the earlier Seller, shall keep Seller informed in reasonable detail of the Effective Time or status of its efforts to arrange the termination of this Agreement in accordance with Article IX, Parent Financing and its Affiliates the Sale Leaseback Financing. Buyer shall give the Company Seller prompt notice of any material breach, repudiation or threatened material breach or repudiation or other Financing Failure Event, or receipt of a written notice of any anticipated or asserted breach or repudiation or other Financing Failure Event, by any party to the Debt Commitment Letter Letters or the Sale Leaseback Agreement of which Parent Buyer or its Affiliates Affiliate becomes aware; provided that none of Parent , if such breach or Merger Sub shall repudiation would reasonably be required expected to disclose prevent or provide any such informationdelay the Closing Date. Without limiting Buyer’s other obligations under this Section 5.21, the disclosure of whichif a Financing Failure Event occurs, in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates Buyer shall (i) promptly notify the Company thereof Seller of such Financing Failure Event and the reasons therefor, (ii) in consultation with Seller, use its reasonable best efforts to obtain alternative financing from the same or alternative Debt Financing Entities on terms financing sources (the “Alternative Financing”), in an amount sufficient to pay the Purchase Price at the Closing and conditions, taken as a whole, no less favorable to Parent than consummate the Financing Conditions, not involving any conditions that would constitute an Adverse Effect on Financing (as defined below) as compared to those set forth transactions contemplated by this Agreement and otherwise in the Debt Commitment Letter delivered to the Company on the date hereof, that, when taken together accordance with the portion of the Debt Financing that remains available and 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, is at least equal to the Required AmountSection 5.21(a), as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company Seller with a true and complete copy of, a new replacement financing commitment commitment, if any, in accordance with Section 5.21(a)(i) that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 Alternative 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions 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 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, 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 if applicable) in connection with any Alternative Financing to the extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same extent as the Debt Financing. Notwithstanding anything herein to the contrary contained in this Agreementcontrary, in no event shall Parent or Buyer (in its Affiliates sole discretion) be required to (i) pay any fees or any interest rates applicable to in the Alternative Financing aggregate in excess of those contemplated by the Debt Commitment Letter as in effect on the date hereof or (including the market flex provisions (if any)ii) or agree to any term (including any market flex term (if any)) terms that are outside of, or less favorable (taken as a whole) to Parent than such term contained any terms set forth in the Debt Commitment Letter as or the Fee Letter (including any “market flex” provision therein). Seller agrees to provide all reasonable cooperation and assistance reasonably requested by Buyer in effect connection with the arrangement of any such Alternative Financing on the date a basis consistent Section 5.22 hereof (including as though such Alternative Financing were the market flex provisions (if anyDebt Financing and any commitment letter thereunder were the Debt Commitment Letter)). 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 2 contracts
Sources: Asset and Stock Purchase Agreement (Darden Restaurants Inc), Asset and Stock Purchase Agreement (Darden Restaurants Inc)
Financing. (a) From To the date of this Agreement until extent that the earlier of Parent does not have cash currently available that is sufficient to enable it to consummate the Effective Time or the termination of this Agreement in accordance with Article IXMerger, Parent and its Affiliates shall use its reasonable best efforts to take, or cause to be taken, all actions, actions and use reasonable best efforts to do, or cause to be done, all things reasonably necessary necessary, proper or advisable, advisable to arrange and obtain procure and have available, as of the Debt Financing Closing, funds sufficient to pay all of the cash amounts required to be provided by Parent for the consummation of the transactions contemplated hereby, including the amounts payable in connection with the consummation of the Mergers, all related fees and expenses required to consummate be paid as of the Debt Financing date of the consummation of the Mergers and the funds to be provided by (or on or prior behalf of) Parent to the Closing DateCompany to enable the Company to fund the repayment or refinancing of the Notes (if elected by Parent) and the Company Credit Agreements. Such actions In furtherance of the foregoing, Parent shall include, but not be limited to, using use its reasonable best efforts to: (i) to cause the Financing Sources to comply with and maintain in effect their obligations under any applicable debt commitment letters, including the Debt Commitment Letter (Letter, or definitive financing agreements and to fund, subject to any amendment, supplement, replacement, substitution, termination or other modification the satisfaction 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 of 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 conditions set forth in the Debt Commitment Letter delivered or other definitive financing agreements, on or before the Closing Date any financing required to consummate the transactions contemplated hereby. Parent shall keep the Company on informed when so reasonably requested by the date hereof; Company and (iv) in reasonable detail of 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 status of its efforts to fund the Debt Financing arrange any financing required in accordance connection with the consummation of the transactions contemplated hereby, including any Debt Commitment LetterFinancing, and enforcing Parent’s rights under to satisfy the conditions thereof, including advising and updating the Company, in a reasonable level of detail, with respect to any material developments concerning the status of such financing, including any Debt Commitment Letter Financing, and the definitive agreements relating to the Debt Financing)proposed funding date thereunder.
(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 of any material breach, repudiation or threatened material breach or repudiation by any party Notwithstanding anything to the Debt Commitment Letter of which Parent or its Affiliates becomes aware; provided that none of Parent or Merger Sub shall be required to disclose or provide any such informationcontrary contained herein, the disclosure of which, in the judgement of Parent upon advice of outside counsel, is Parent’s obligations hereunder are not subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In the event all condition regarding Parent’s or any portion of its Affiliates’ obtaining funds to consummate the Debt Financing becomes unavailable on the terms Mergers 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 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, that, when taken together with the portion of the Debt Financing that remains available and 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, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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, 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (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 transactions contemplated by this Agreement, including the Offer payment of any fees and expenses and repayment or refinancing of the Notes (if elected by Parent) and the Merger, (D) materially adversely affect Parent’s ability to consummate the transactions contemplated by this Agreement, including the 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, 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 FinancingCredit Agreements.” 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 7.18, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 2 contracts
Sources: Merger Agreement (Sungard Capital Corp Ii), Merger Agreement (Fidelity National Information Services, Inc.)
Financing. (a) 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 Purchaser shall and shall cause its Affiliates shall use reasonable best efforts to take, or cause to be taken, all actions, and use reasonable best efforts to do, or cause to be done, done all things reasonably necessary necessary, proper or advisable, to arrange and obtain the Debt Financing and advisable to consummate the Debt Financing on or prior to the Closing 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 of any material breach, repudiation or threatened material breach or repudiation by any party to the Debt Commitment Letter of which Parent or 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 advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligation.
(c) In 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 Section 8.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor, (ii) 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 Adverse Effect on Substitute Financing (as defined below) as compared 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 those 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 Debt Commitment Letter delivered 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 date hereofterms and conditions set forth therein, thatin each case, when taken together with the portion other than as a result of the Debt Financing that remains available receipt of Offering Proceeds, Purchaser shall, and 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, is at least equal to the Required Amountshall cause its Affiliates, as promptly as practicable following the occurrence of such eventevent to (x) notify Company in writing thereof, (y) obtain substitute financing (on terms and (iii) use reasonable best efforts conditions that are not materially less favorable to obtainPurchaser and Merger Sub, taken as a whole, than the terms and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such alternative financing; provided that any provisions conditions as set forth in such new financing commitment relating to feesthe Commitment Letter, pricing terms, taking into account any “market flex” provisions (if anythereof) sufficient to enable Purchaser to consummate the Merger and the other terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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 transactions contemplated hereby in accordance with Article IXits terms (the “Substitute Financing”) and (z) obtain a new financing commitment letter that provides for such Substitute Financing and, without the prior written consent promptly after execution thereof, deliver to Company true, complete and correct copies of the Company, Parent new commitment letter 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 related fee letters (A) impose additional conditions precedent or expand upon the conditions precedent in redacted form reasonably satisfactory to the funding of Persons providing such Substitute Financing removing only the Debt Financingfee information, (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 existing revolving credit expense information and securitization facilitiessuccessful syndication information) and other sources of immediately available funds), (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 transactions 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 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 related 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 financing documents 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 Substitute Financing. Upon request obtaining any commitment for any such Substitute Financing, such financing shall be deemed to be a part of the Company, Parent “Financing” and any commitment letter for such Substitute Financing 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 be deemed the “Alternative Financing.Commitment Letter” For for all purposes of this Agreement. Notwithstanding the foregoing, references to “Debt Financing” neither Purchaser nor any of its Affiliates 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”enter into, or “Financing” shall include agree to enter into, any new commitments for any financing that would result in a reduction of the documents (or commitments or financing sources, as applicable) set forth in connection with any Alternative Financing the Commitment Letter unless the conditions precedent of such new commitments are not materially less favorable to the extent permitted by this Section 7.18, Purchaser and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same 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 than the Alternative Financing conditions precedent set forth in excess of those contemplated by the Debt Commitment Letter as in effect on the date hereof.
(b) Notwithstanding anything contained in this Agreement to the contrary, Purchaser expressly acknowledges and agrees that Purchaser’s and Merger Sub’s obligations hereunder are not conditioned in any manner upon Purchaser or Merger Sub obtaining the Financing, any Substitute Financing or any other financing. Purchaser’s breach of any of its representations or warranties in Section 3.1(f), Purchaser’s or Merger Sub’s breach of any of 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 (including and any other amounts that may have to be paid pursuant to Section 1.11) and/or the market flex provisions 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.
(if any)c) 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 For the Debt Commitment Letter as in effect on period from the date hereof and the Closing, Company shall provide and shall use its commercially reasonable efforts to cause each of its Representatives, including legal, tax, regulatory and accounting, to provide, all cooperation reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Company 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 market flex provisions preparation of an information package regarding the business, operations, financial projections and prospects of Purchaser and Company 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 investment bank to receive customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with a registered offering and (B) materials for rating agency presentations, (iv) reasonably cooperating with the 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 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 most recent audited financial statements and at least forty-five (45) days prior to the Closing 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 Company; provided that until the Closing occurs, Company shall (A) have no liability or any obligation under any agreement or document related to the Financing or (B) not be required to incur any other liability in connection with the Financing unless simultaneously reimbursed or reasonably satisfactorily indemnified by Purchaser. Parent shall, promptly upon request by Company, reimburse Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Company or any of its Subsidiaries in connection with the 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 expressly acknowledge shall, on a joint and agree 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 any Financing or other securities offering of Parent and/or its Subsidiaries or any assistance or activities provided in connection therewith.
(d) Purchaser shall pay, or cause to be paid, as the same shall become due and payable, all fees and other amounts that their obligations become due and payable prior to the Closing Date under this Agreementthe Commitment Letter or 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 of September 30, 2010, among Purchaser, Bank of America N.A. and certain other parties thereto (as amended, restated, supplemented, extended or replaced from time to time, the “Existing Credit Agreement”) to be less than $1,300,000,000 at any time prior to the 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 Existing Credit Agreement that would reasonably be likely to (i) cause the revolving loans under the Existing Credit Agreement to be 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 amount of the Financing commitments to zero, provided that Purchaser shall not reduce such borrowing availability to an amount 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 obligations respective Subsidiaries that are committed to fund the Merger Consideration, to consummate the Offer Merger and the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of financingtransactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Wellpoint, Inc), Merger Agreement (Amerigroup Corp)
Financing. (a) From the date Each 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 Merger Sub shall use reasonable best efforts to takecause BI-LO Holding, or cause LLC (“BI-LO Holding”) to be takenobtain the Debt Financing on the terms and conditions described in the Debt Financing Commitments and the Fee Letter, all actions, and use including using reasonable best efforts to do(i) negotiate definitive agreements with respect thereto on the terms and conditions contained therein, or cause (ii) satisfy on a timely basis all conditions applicable to be doneBI-LO Holding, all things reasonably necessary or advisable, to arrange Parent and obtain Merger Sub in the Debt Financing Commitments and to 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 Debt Financing on at or prior to the Closing DateDate (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). Such actions Notwithstanding anything to the contrary in the immediately preceding sentence, Parent and Merger Sub shall, and shall include, but not be limited cause each of BI-LO Holding and the Sponsor and their respective Affiliates to, using reasonable best efforts to: (i) comply with and take all actions reasonably necessary to maintain in effect the Debt Commitment Letter Financing Commitments.
(subject to any amendment, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (db) below); (ii) satisfy, or obtain a waiver thereof, Parent shall keep the Company informed on a timely regular basis all Financing Conditions and in reasonable detail of the status of its and BI-LO Holding’s efforts 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 arrange the Debt Financing (including by instructing promptly providing the Debt Financing Sources to fund the Debt Financing in accordance Company with the Debt Commitment Letter, and enforcing Parent’s rights under the Debt Commitment Letter and the copies of all definitive agreements relating related 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) of any material breachbreach or default by any party to any of the Financing Commitments or definitive agreements related to the Financing of which Parent becomes aware, repudiation (ii) of the receipt of any written notice or threatened 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 any of the Debt Commitment Letter Financing Commitments or definitive agreements related to the Financing of which 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 time for any reason Parent believes in good faith that it or its Affiliates becomes aware; provided that none BI-LO Holding will not be able to obtain all or any material portion of Parent or Merger Sub shall be required to disclose or provide any such information, the disclosure of whichFinancing on the terms and conditions, in the judgement manner or from the sources contemplated by any of the Financing Commitments and the Fee Letter or definitive agreements related to the Financing. As soon as practicable after the Company delivers to Parent upon advice 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 outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality obligationthe immediately preceding sentence.
(c) Parent and BI-LO Holding shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its 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 the Fee Letter in any way or (ii) be reasonably expected to prevent or cause any delay of the consummation of the Merger 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 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)provisions) (other than as a result of contemplated in the Company’s breach of any provision of this Agreement or failure to satisfy Debt Financing Commitments and the conditions set forth in Section 8.1 and Annex 1)Fee Letter, then Parent and its Affiliates shall (i) promptly so notify the Company thereof and the reasons therefor, (ii) shall cause BI-LO Holding to use reasonable best efforts to promptly obtain alternative financing from the same or alternative Debt Financing Entities on terms not materially less beneficial to BI-LO Holding and conditions, taken as a whole, no less favorable to Parent than the Financing Conditions, not involving any conditions that would constitute an Adverse Effect on Financing (as defined below) as compared to those determined in the reasonable judgment of BI-LO Holding and Parent, taking into account the flex provisions set forth in the Debt Commitment Letter delivered to the Company on the date hereof, that, when taken together with the portion of the Debt Financing that remains available and any cash on hand, available lines of credit (including under Borrower’s existing revolving credit and securitization facilitiesFee Letter) and in an amount sufficient to consummate the Merger, the Refinancing and the other sources of immediately available funds, is at least equal to the Required Amounttransactions contemplated by this Agreement, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such 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 redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate 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 Company shall use its reasonable best efforts to, and 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 date of this Agreement until Financing (provided that such requested cooperation does not unreasonably interfere with the earlier ongoing operations of the Effective Time Company or any of its Subsidiaries), including:
(i) participating in a reasonable number of meetings (including customary one-on-one meetings with the termination 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 this Agreement in accordance with Article IX, without the prior written consent Company and other members of senior management and Representatives of the Company), Parent presentations, road shows, due diligence sessions, drafting sessions and its Affiliates shall not amendsessions with rating agencies in connection with the Financing, modifyin each case, supplementwith reasonable advance notice and at reasonable locations;
(ii) cooperating reasonably with the marketing efforts of Parent, restate, assign, substitute or replace BI-LO Holding and the Debt Commitment Letter Financing Sources for all 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 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 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) reduce unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the amount 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 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 Debt Financing or and to permit the net proceeds thereof, together with the cash proceeds at the Company and its Subsidiaries, to be made 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 existing revolving credit and securitization facilities) and other sources of immediately available funds), (C) prevent or materially delay or make materially less likely the funding of the Debt Financing (or the satisfaction of the Financing Conditions) Parent on the Closing Date or materially impair, delay or prevent the consummation of the transactions 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 Merger. The Company will periodically update the Offer and the Merger Required Information included in any bank information or (E) materially adversely impact the ability of Parent or any of its Affiliates’ other similar offering memorandum to enforce their respective rights against the Debt Financing Sources or any of the other parties be used 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, 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 obtain the Debt Financing in order to obtain alternative sources ensure that such Required Information does not contain any untrue statement of debt financing material fact or omit to state any material fact necessary in lieu order to make the statements contained therein not misleading.
(e) The Company hereby consents to the use of all or a portion of its and its Subsidiaries’ logos in connection with the Debt Financing and/or (4) increase the aggregate amount of the Debt Financing, in each case, so long as such amendments would logos are used solely in a manner that is not be intended to nor reasonably expected likely to result in an Adverse Effect on Financing. Upon harm or disparage the Company and its Subsidiaries.
(f) Parent shall, promptly upon request of by the Company, Parent shall keep reimburse the Company informed in for all documented and reasonable detail of out-of-pocket costs and expenses incurred by the status of Parent’s efforts to arrange the Debt Financing. Any alternative, substitute Company 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) 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 Alternative responsibility for, or incur any liability to any Person under or in connection with, the arrangement of the Financing to or any alternative financing that Parent or Merger Sub may raise in connection with the extent permitted transactions contemplated by this Section 7.18Agreement if the Closing does not occur. Parent and Merger Sub shall, on a joint and such Alternative Financing shall be required to comply 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 provisions arrangement of this Agreement to the same extent as Financing and any information utilized in connection therewith (other than information provided in writing by the Debt FinancingCompany or its Subsidiaries expressly for use in connection therewith). Notwithstanding anything to the contrary contained in this AgreementSection 5.11, in no event the Company shall Parent or its Affiliates not be required to pay become subject to any fees obligations or liabilities with respect to any interest rates applicable document or agreement prior to the Alternative Financing Effective Time.
(g) The obligations of the Company set forth in excess this Section 5.11 are the sole obligations of those contemplated by the Company with respect to the Debt Commitment Letter as in effect on the date hereof (including the market flex provisions (if any)) Financing and no other provision of this Agreement shall be deemed to expand or agree to any term (including any market flex term (if any)) less favorable (taken as a whole) to Parent than modify 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 financingobligations.
Appears in 2 contracts
Sources: Merger Agreement (Southeastern Grocers, LLC), Merger Agreement (Winn Dixie Stores Inc)