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 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 ~~Merger~~value of its security. Lessor agrees to execute and deliver (and to acknowledge if necessary for recording purposes) any agreement necessary to effect any such amendment; provided, however, that any such amendment shall not in any way affect or change the term of this Agreement or the Rent or other amounts payable to Lessor under this Agreement, subordinate the fee interest of Lessor in the real property underlying the Premises, nor otherwise in any material respect adversely affect any rights of Lessor under this Agreement. 2.18.10 The bankruptcy or insolvency of Company 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 to~~performed in accordance with the terms of this Agreement. 2.18.11 To the extent any of the terms of this Agreement are inconsistent with the terms of this Section regarding mortgagee protection provisions, the mortgagee protection provisions will control. 2.18.12 Every Leasehold Mortgage shall contain a provision that copies of all notices of default by Company thereunder must be sent to Lessor. In the event of any default by Company under any Leasehold Mortgage, the Lessor reserves the right to make any payments due to the Leasehold Mortgagee before the Leasehold Mortgagee resorts to any foreclosure or sale proceedings under its deed of trust or other security instrument. 2.18.12.1 Following any foreclosure or deed in lieu of foreclosure the leasehold estate created by this Agreement and the Facilities may be transferred or assigned as provided in Section 2.1.2. 2.18.13 Any mortgage placed by the Lessor on the fee title to the Premises shall be subordinate to this Agreement (and any replacement to this Agreement), any separate lease entered into in accordance with Section 4.8 and all Subleases. 2.18.14 Prior to any termination of this Agreement by Lessor, any Leasehold Mortgagee shall be allowed sufficient time to complete any foreclosure action, including time for delays due to official restraint (including by law, process or injunction issued by a court), so long as such Leasehold Mortgagee is making payments required by this Agreement which can be reasonably determined prior to acquiring the Company’s interest under this Agreement. Leasehold Mortgagee shall have the right to terminate foreclosure proceedings at any time if Company has cured all defaults under any loan from Leasehold Mortgagee. However, no such termination of foreclosure proceedings shall prevent Lessor from pursuing, or ~~conditioned on~~continuing 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 ~~financing~~losses under insurance policies maintained by Company under this Agreement. Such Leasehold Mortgagee shall be named as a loss payee or additional insured, as applicable, in accordance with any loan documents executed by Company, under the insurance policies required under this Agreement. Company shall use commercially reasonable efforts to 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 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 ~~take~~obtain the Financing on the terms and conditions described in or contemplated by the Financing Commitments and shall not agree to any amendment or modification to, or ~~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 amendment~~its 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 Financing~~Financing 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 financing~~ELN 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 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 IX~~the Resolution for the purpose of refinancing the CRA Projects and for other lawful purposes authorized by the Resolution. The debt service on the 2010 Note is not secured by any amounts pledged to the 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 ~~taken~~deposited 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 ~~actions~~amounts 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 ~~done~~made 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 include~~exercise of full and complete control and custody of the Redevelopment Trust Fund, ~~but not be limited to~~and 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

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 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 include~~Effective 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) below~~any 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 hereof~~control 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 information~~of 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 any~~b) 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 Conditions~~conditions 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, ~~assign~~replace, ~~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, ~~underwriters~~agents and lenders in accordance with the terms of the Commitment Letter (but not to make any other changes other than to the extent otherwise permitted under this Section 6.11(a)). For purposes of this Agreement, ~~agents~~the 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 therewith~~upon 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 alternative~~As 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 7.18~~Parent 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~~ The Parent Group collectively will have, as 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~~ sufficient cash 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~~equivalents, available lines of credit ~~(including under Borrower’s existing revolving credit and securitization facilities) and~~ or other sources of immediately available ~~funds), which shall reflect~~ funds to consummate the ~~terms contained in~~ Merger and the other transactions contemplated by this Agreement that require payment on the Closing Date. Parent has delivered to the Company a true and complete copy of the executed Debt Commitment Letter (~~including~~ other than the redacted portions of any ~~“market flex” provisions (if any) related thereto) or on~~ fee letters, which redactions shall be limited to pricing, fee amounts, price flex and other economic terms and in no case shall such ~~other~~ redactions relate to terms ~~acceptable to Parent~~ that would be reasonably likely to adversely affect the conditionality, enforceability, availability, termination or aggregate amount of the Debt Financing). The Debt Commitment Letter has not ~~constitute an Adverse Effect on~~ been amended or modified in any manner prior to the execution and delivery of this Agreement. Neither Parent nor any of its Affiliates has entered into any agreement, side letter or other commitment or arrangement relating to the financing of the transactions contemplated by this Agreement that could affect the availability of the Debt Financing or the timing of the Closing, other than as ~~compared to those~~ set forth in the Debt Commitment Letter ~~delivered to~~ 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 satisfied, consummate~~ fee letters related thereto. The proceeds of the Debt Financing (~~including by instructing the Debt Financing Sources to fund the Debt Financing in accordance with the Debt Commitment Letter,~~ both before and ~~enforcing Parent’s rights under the Debt Commitment Letter and the definitive agreements relating~~ after giving effect 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 exercise 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~~ related thereto), together with any other ~~terms that are customarily redacted~~ sources of funds immediately available to Parent or Merger Sub at Closing (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 cash 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,~~ equivalents and available lines of credit held by the Company (~~including~~ assuming the accuracy of the representations and warranties of the Company pursuant to this Agreement and the performance by the Company of its obligations hereunder) and the proceeds of the loans under ~~Borrower’s~~ existing revolving credit ~~and securitization facilities) and other sources~~ facilities of ~~immediately available funds~~Parent), (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 will be sufficient 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 hereby. 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 execution 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 delivery 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 have not been withdrawn or rescinded in any respect. As of the execution and delivery of this Agreement, the Debt Commitment Letter is in full force and effect and represents a valid, binding and enforceable obligation of the Debt Commitment Parties, to provide the financing contemplated thereby subject only to the satisfaction or waiver of the Financing Conditions and, subject to the qualification that such enforceability may be limited by bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting rights of creditors. Parent has fully paid (or caused to be paid) any and all commitment fees and other amounts that are due and payable on or prior to the date of this Agreement in connection with the Debt Financing. As of the execution and delivery of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default on the ~~date hereof~~ part of Parent under any term of the Debt Commitment Letter. As of the execution and delivery of this Agreement, assuming the conditions precedent set forth in Section 6.1 and Section 6.2 are satisfied (~~including~~ other than those that by their nature are to be satisfied at the ~~market flex provisions~~ Closing), Parent has no reason to believe that (~~if any))~~i) any of the Financing Conditions will not be satisfied or (ii) the Debt Financing will not be made available to Parent on the Closing Date. There are no conditions precedent related to the funding of the full amount of the Debt Financing other than the Financing Conditions contained in the Debt Commitment Letter. Parent understands and acknowledges that under the terms of this Agreement, the obligations of Parent and Merger Sub ~~expressly acknowledge and agree that their obligations under this Agreement, including their obligations~~ to consummate the ~~Offer and the Merger,~~ Merger are not in any way contingent upon or otherwise subject toto the consummation by Parent or Merger Sub of any financing arrangements, the obtaining by Parent or ~~conditioned on~~Merger Sub of any financing or the availability, ~~Parent’s~~ grant, provision or extension of any financing to Parent or Merger Sub~~’s receipt of financing~~.

Appears in 3 contracts

Sources: Merger Agreement (Jetblue Airways Corp), Merger Agreement (Spirit Airlines, Inc.), Merger Agreement (Jetblue Airways Corp)

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 IX~~Closing Date, Parent and ~~its Affiliates shall use reasonable best efforts to take~~Merger Sub will have funds, ~~or cause to be taken~~in 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 amendment~~be 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) ~~satisfy~~the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, ~~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 IX~~each 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 information~~the 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 1~~its 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 ~~obtain~~obtain from its advisors), credit agreements and ~~when obtained~~other 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 of~~the Financing, ~~a new financing commitment that provides for such alternative financing~~including 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 fees~~documents, ~~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 redacted~~cooperate 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 Date~~Company 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 IX~~occurs, ~~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 (E~~any such agreements the “Definitive Financing Agreements”), ~~each an “Adverse Effect on Financing”); provided that~~ (B) adversely impact the ability of Parent ~~may~~to 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 ~~Company~~Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, ~~amend~~replaced, ~~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 Financing~~Confidentiality 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 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 include~~Date 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 (d~~b) ~~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 arrangers~~if 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 ~~financing~~the 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~~ Prior to the ~~date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX~~Charter Closing, 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~~ proceeds of the Financing on the terms and conditions described in the Financing Commitment (or any other Financing in lieu thereof) (subject to ~~consummate~~ any amendments, modifications, waivers or replacements not prohibited by this Section 6.19(a)), including using reasonable best efforts to (i) maintain in effect the ~~Debt~~ Financing Commitment, (ii) satisfy on a timely basis (or obtain a waiver of) all conditions to funding the Committed Financing, (iii) negotiate and enter into definitive agreements with respect thereto on terms and conditions described in the Financing Commitment (subject to any amendments, modifications, waivers or replacements not prohibited by this Section 6.19(a)) on or prior to the Charter 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~~ Financing 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 (ivv) in the event that all conditions in the ~~Offer Conditions~~ Financing Commitment (or any other Financing in lieu thereof) have been ~~satisfied or waived or, upon funding would be~~ satisfied, cause the lenders and other Persons providing the Committed Financing (or any other Financing in lieu thereof) to fund on the Charter Closing Date the Committed Financing (or any other Financing in lieu thereof) required to consummate the ~~Debt~~ Transactions. To the extent requested by the Company from time to time, Parent shall keep the Company informed on a reasonably current basis of the status of its efforts to obtain the Financing (~~including by instructing the Debt Financing Sources to fund the Debt Financing in accordance with the Debt Commitment Letter,~~ or Alternative Financing) and ~~enforcing Parent’s rights under the Debt Commitment Letter and the definitive agreements relating~~ provide to the ~~Debt~~ Company copies of all material documents related to the Financing (or Alternative 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~~ Committed Financing becomes unavailable on the terms and conditions ~~contemplated by the Debt Commitment Letter~~ (including any “flex” provisions) contemplated in the ~~flex provisions~~ Financing Commitment (~~if any~~and subject to any amendments, modifications or replacements not prohibited by this Section 6.19(a)) prior to the Charter Closing Date for any reason (~~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~~ A) Parent ~~and its Affiliates~~ shall ~~(i)~~ promptly notify the Company ~~thereof~~ in writing and ~~the reasons therefor,~~ (iiB) Parent shall 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 Amountobtain, as promptly as practicable following the occurrence of such event, ~~and~~ alternative financing (~~iii~~the “Alternative Financing”) ~~use reasonable best efforts~~ in an amount sufficient to ~~obtain, and when obtained, provide~~ consummate 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 Transactions (~~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~~ after giving effect to any ~~terms~~ committed financing); provided, that such Alternative Financing would not reasonably be expected to ~~reduce the aggregate principal amount of such alternative financing to be funded on the Closing Date~~ prevent, 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~~Transactions; provided, 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 further that Parent ~~may~~shall have no obligation to accept (i) any fees, ~~without the prior written consent of the Company, amend, modify, supplement, restate, assign, substitute~~ interest 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 other 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 terms (taken as a whole) that are less favorable in any respect 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.fees,

Appears in 3 contracts

Sources: Merger Agreement (Brookfield Property Partners L.P.), Merger Agreement (Brookfield Asset Management Inc.), Merger Agreement (GGP Inc.)

Financing. (a) ~~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 amendment~~funding under the Financing Documents and, ~~supplement~~if applicable, ~~replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below)~~Replacement Financing Documents; (ii) ~~satisfy~~upon satisfaction of the conditions set forth in Section 3.02 of the Loan Facility (and/or, in respect of certainty of funding, such substantially equivalent conditions (or ~~obtain a waiver thereof~~conditions 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) ~~negotiate~~cause 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 Letter~~terms 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 Financing~~event 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 IX~~Replacement Financing Documents; provided, that Verizon shall not, without the prior written consent of Vodafone, at any time prior to the ~~Company~~Closing: (i) permit any amendment, ~~Parent and its Affiliates shall not amend~~replacement, ~~modify~~supplement 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, ~~modification~~replacement, 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 Financing~~Financing 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 ~~Merger~~Financing Documents and/or Replacement Financing Documents to add lenders, ~~(D) materially adversely affect Parent’s ability to consummate the transactions contemplated by this Agreement~~lead 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 ~~Company~~Loan Facility. Verizon shall promptly following execution deliver to Vodafone copies of any such amendment, ~~amend, modify~~replacement (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~~ 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 include~~Effective 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 (d~~iii) ~~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 Affiliates~~Merger 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 any~~any “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 therefor~~Alternative 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 7.18~~Parent or Merger Sub to permit the consummation of the Financing and the direct borrowing or incurrence of all of the proceeds of the Financing, including any high yield debt financing, by the Surviving Corporation or its Subsidiaries following the Effective Time, (xi) taking all corporate actions reasonably necessary to permit the consummation of the Debt Financing and/or the Alternative Financing, including without limitations the execution and delivery of any other certificates, instruments or documents, and ~~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 Agreement~~any 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 ~~Merger~~Offshore Bank Designated Accounts is not less than RMB100,000,000 (or its equivalent, ~~are not subject to~~as determined using the conversion rate described in paragraph (e) of Clause 1.2 (Construction) of the Facility Agreement) until the Effective Time (such amount balance standing to the credit of the Onshore Bank Designated Accounts and the Offshore Bank Designated Accounts meeting the requirements of this provision, ~~or conditioned on, Parent’s or Merger Sub’s receipt of financing~~the “Onshore Required Balance”).

Appears in 3 contracts

Sources: Merger Agreement (Sequoia Capital China I Lp), Merger Agreement (Chiu Na Lai), Merger Agreement (Le Gaga Holdings LTD)

Financing. (a) ~~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 IX~~Closing Date, Parent and ~~its Affiliates~~ Merger Sub shall use their respective reasonable best efforts to ~~take, or cause to be taken, all actions~~obtain 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 amendment~~Letters, ~~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 ~~Letter~~Letters 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 IX~~Section 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 ~~breach~~breach 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 ~~event~~event (and in any event no later than the Closing). Parent shall furnish the Company with complete, correct and executed copies of any material definitive agreements with respect to the Financing (including any alternative financing agreement) promptly upon their execution and shall keep the Company reasonably informed of the status of its efforts to arrange and consummate the Financing. (e) In the period between the date hereof and the Closing Date, upon the request of Parent and Merger Sub, the Company shall and shall cause its Subsidiaries and its and their respective officers, directors, managers, employees, accountants, consultants, legal counsel, agents and other representatives, at Parent’s sole expense, to cooperate reasonably in connection with the arrangement and obtaining of the Financing, including (i) providing to Parent, Merger Sub and their Financing Sources from time to time all financial and other pertinent information regarding the Company and its industry reasonably requested by them (including information to be used in the preparation of one or more information packages regarding the business, operations, financial projections and prospects of the Company and its Subsidiaries customary for such Debt Financing or reasonably necessary for the syndication of the Debt Financing by the Debt Financing Sources), (ii) participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions with prospective lenders and sessions with rating agencies in connection with the Debt Financing, including direct contact between senior management (with appropriate seniority and expertise) and representatives (including accountants) of the Company and its Subsidiaries, on the one hand, and the Debt Financing Sources, potential lenders and investors for the Debt Financing, on the other hand, (iii) furnishing all financial statements reasonably required by the Commitment Letters within the time periods specified therein, (iv) assisting with the preparation and entering into as of the Effective Time of definitive agreements with respect to the Debt Financing (including review as of any disclosure schedules related thereto for completeness and accuracy) or the amendment of any of the Company’s or its Subsidiaries’ currency or interest hedging agreements, or other agreements, in each case, on terms satisfactory to Parent and that are reasonably requested by Parent in connection with the Debt Financing (provided, however, that prior to the Effective Time the Company shall only be required to amend any such agreement if the Guarantor shall provide the Company with indemnification satisfactory to the Company for the effects of any such amendment), (v) assisting with the preparation of materials for rating agency presentations, offering and syndication documents (including public and private information memoranda and lender presentations), business projections and similar marketing documents required in connection with the Debt Financing (provided, that any such presentations and similar documents shall contain disclosure and pro forma financial statements reflecting the Surviving Corporation and/or its Subsidiaries as the obligor and Parent shall be solely responsible for the preparation of any such pro forma financial statements contained therein, provided, that, the Company shall use its reasonable best efforts to ~~obtain~~cause 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 obtained~~management 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 ~~fees~~the Financing (to the extent the satisfaction of such condition requires the cooperation of, ~~pricing terms~~and is within the control of, ~~“market flex” provisions~~ the Company and its Subsidiaries), including but not limited to (~~if any~~A) permitting, subject to appropriate confidentiality arrangements, the prospective lenders and investors to evaluate the Company’s and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and (B) establishing bank and other ~~terms that are customarily redacted~~ accounts and security arrangements in connection with the foregoing, (~~including any dates related thereto~~ix) ~~may be redacted~~issuing 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 ~~amendment~~consents, ~~modification~~approvals, ~~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 impair~~Effective 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 may~~that, 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 ~~Agreement~~Agreement (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 financing~~Section 5.07.

Appears in 3 contracts

Sources: Merger Agreement, Merger Agreement (Cole Kenneth Productions Inc), Merger Agreement (Cole Kenneth Productions Inc)

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 IX~~Effective 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 take~~indemnify 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) below~~connection therewith); ~~(ii) satisfy~~in 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 ~~information~~obligations, ~~the disclosure of which~~losses, ~~in the judgement of Parent upon advice of outside counsel~~damages, ~~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 ~~Merger~~Financing, ~~(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.)

Appears in 3 contracts

Sources: Merger Agreement (McJunkin Red Man Corp), Merger Agreement (Goldman Sachs Group Inc), Merger Agreement (McJunkin Red Man Holding Corp)

Appears in 3 contracts

Sources: Merger Agreement (Terra Industries Inc), Merger Agreement (CF Industries Holdings, Inc.), Agreement and Plan of Merger (CF Industries Holdings, Inc.)

Financing. (a) ~~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, ~~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 Financing~~Closing. Notwithstanding ~~anything to~~ the ~~contrary contained in this Agreement~~foregoing, 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 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 and~~ obtain the ~~Debt~~ proceeds of the Financing on the terms and ~~to consummate~~ conditions described in the ~~Debt~~ Commitment Letter (or the proceeds of permanent Financing in lieu thereof) (taking into account any “flex provisions” set forth in the related fee letters) on or prior to the ~~Closing Date. Such actions shall include~~date upon which the Merger is required to be consummated pursuant to the terms of this Agreement, ~~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 amendment~~provided, ~~supplement~~that the Commitment Letter may be amended, ~~replacement~~supplemented, ~~substitution~~modified and replaced as permitted by this Section 6.11 (a)), ~~termination or other modification or waiver that is not prohibited by clause (d) below);~~ (ii) ~~satisfy~~negotiating and entering into Definitive Financing Agreements with respect to the Financing consistent with the terms and conditions contained in the Commitment Letter (including, ~~or obtain a~~ as necessary, the “flex” provisions contained in any related fee letter) and (iii) satisfying (or, if deemed advisable by Parent, obtaining the waiver ~~thereof,~~ of) on a timely basis all conditions (other than those conditions that by their nature are to be satisfied at the Closing) in the Commitment Letter and the Definitive Financing ~~Conditions to~~ Agreements and complying with its obligations thereunder. In 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 event that all conditions contained in the ~~Debt~~ Commitment Letter (~~including any “market flex” provisions (if any~~other than the consummation of the Merger and those conditions that by their nature are to be satisfied at the Closing) 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 IXwaived, 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~~ enforce its rights under the ~~same or alternative Debt Financing Entities on terms and conditions~~Commitment Letter, ~~taken as a whole, no less favorable~~ including to ~~Parent than~~ cause the Financing ~~Conditions, not involving any conditions that would constitute an Adverse Effect on Financing (as defined below) as compared~~ Sources 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 fund on the Closing Date ~~or impose additional conditions precedent~~ the Debt Financing; provided, that in no event shall Parent be obligated 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, bring any Legal Proceedings against any Financing Sources. Parent shall not without the prior written consent of the ~~Company~~Company permit any amendment or modification to, ~~Parent and its Affiliates shall not amend~~replacement of, ~~modify~~or any waiver of any material provision or remedy under, ~~supplement, restate, assign, substitute or replace~~ the ~~Debt~~ Commitment Letter ~~or any Debt Financing Document~~ if such amendment, modification, ~~supplement~~replacement, ~~restatement~~waiver or remedy would reasonably be expected to prevent, 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 impede 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 Merger and the other transactions contemplated by this Agreement; provided, that no consent from the Company shall be required for (i) any amendment, replacement, supplement or modification of the Commitment Letter that adds lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as of the date hereof, (ii) implementation or exercise of any “flex” provisions provided in any related fee letter as in effect as of the date hereof or (iii) any amendment to, or replacement of or supplement or modification to, the Commitment Letter or Definitive Financing Agreement so long as such action would not be prohibited by the foregoing clause. Parent shall promptly notify the Company of any such amendment, modification, waiver or replacement and deliver the Company a copy thereof. (b) Without limiting the generality of Section 6.11(a), if Parent believes it will incur any Financing in connection with the Closing, on not less than five Business Days’ prior written notice of the initial request therefor, the Company agrees to cooperate with Parent, as reasonably requested by Parent, to obtain such Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company or any of its Subsidiaries) including by using (and by causing its Subsidiaries and its Representatives to use) reasonable best efforts to: (i) cause the management of the Company, in each case, with appropriate seniority and expertise, to participate, at reasonable times and upon reasonable advance notice, in a reasonable number of meetings, presentations, roadshows, drafting sessions, sessions with rating agencies, conference calls with prospective lenders of and investors in the Financing, and due diligence sessions; (ii) subject to the confidentiality undertakings set forth in the Confidentiality Agreement, provide reasonable and customary assistance with the preparation of materials relating to the Company and its Subsidiaries in connection with the transactions contemplated by this ~~Agreement~~Agreement for rating agency presentations, ~~including~~ marketing materials, offering documents and other documents necessary for any Financing, and provide reasonable cooperation with the ~~Offer and~~ due diligence efforts of 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~~ with respect to the ~~Debt Commitment Letters or the definitive agreements with respect thereto~~ Company and its Subsidiaries during normal business hours upon reasonable advance notice; (~~clauses~~ iii) furnish to Parent (A) ~~through~~ the Financing Deliverables and (~~E), each an “Adverse Effect on Financing”); provided~~ B) the Financing Information (including any updates to the Financing Information so that ~~Parent may, without~~ marketing materials used in any Financing do not contain any untrue statement of a material fact or omit to state a fact necessary to make the ~~prior written consent~~ statements contained therein not misleading as a result of ~~the Company, amend, modify, supplement, restate, assign, substitute~~ a misstatement 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 omission with respect to ~~such appointments~~the Financing Information, (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 Financingother than, in each case, with respect to information supplied by or on behalf of Parent or Merger Sub); (iv) cause its independent auditors to provide reasonable and customary cooperation in connection with the Financing, including by providing the Specified Auditor Assistance and signing customary management representation letters to such auditors so ~~long as~~ that such ~~amendments~~ Specified Auditor Assistance can be provided; (v) assist Parent with Parent’s preparation of pro forma financial statements and projections by providing the Financing Information to be used in preparing such pro formas that are requested in connection with any Financing or that would customarily be included in the marketing materials with respect to the Financing; and (vi) furnish to Parent other documents of the Company and its Subsidiaries reasonably requested by Parent in connection with any Financing that includes an offering of securities in order to allow such Financing Sources to establish a “due-diligence” defense; and (vii) satisfy the conditions precedent set forth in the Debt Letters or any Definitive Financing Agreement to the extent the satisfaction of such conditions requires the cooperation of or is within the control of the Company and its Subsidiaries. (c) The Company hereby consents to the use of its and each of its Subsidiaries’ logos in connection with the Financing; provided that such logos are used solely in a manner that is not be intended to, and is not reasonably expected to, harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or its Subsidiaries and their respective marks, products, services, offerings or Intellectual Property Rights. Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including attorney’s fees) incurred by the Company and any of its Subsidiaries and their respective Representatives in connection with providing the assistance contemplated by this Section 6.11. Parent shall indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs, expenses (including reasonable attorney’s fees), awards, judgments, penalties and other Liabilities actually suffered or incurred by any of them in connection with the Financing and any information used in connection therewith (other than any information provided in writing by the Company or any of its Subsidiaries expressly for use in connection therewith) or in connection with providing the assistance contemplated by this Section 6.11, except to ~~result in an Adverse Effect on Financing. Upon request~~ the extent arising from bad faith, willful misconduct or fraud 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~~ its Subsidiaries or ~~replacement debt financing obtained by Parent in accordance with this paragraph and the previous paragraph is the “Alternative Financing~~their 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~~d) 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 Section 6.11, (i) none of the Company or any of its Subsidiaries or their respective Representatives shall be required to take or permit the taking of any action or provide any assistance that would (A) unreasonably interfere with the business or operations of the Company or any of its Subsidiaries, (B) cause any representation or warranty or covenant of the Company in this Agreement to be breached by the Company or any of its Subsidiaries, (C) require the Company or any of its Subsidiaries or their respective Affiliates to pay (or agree to pay) any fees, or reimburse any expenses prior to the Closing for which it is not promptly reimbursed, or otherwise incur any other obligations (other than any obligations under customary authorization letters, management representation letters or other documents delivered to the Company’s independent registered accounting firm in connection with the Specified Auditor Assistance) or give any indemnities prior to the Closing that are not contingent on the Closing, (D) cause any director, officer, employee or shareholder of the Company or any of its Subsidiaries to incur any personal Liability, (E) conflict with the Charter Documents of the Company or any of its Subsidiaries or any Applicable Laws, (F) result in the breach of, or default under, any Material Contract or (G) require the Company or any of its Subsidiaries to prepare separate financial statements for the Company or any of its Subsidiaries or change any fiscal period or prepare any financial statements or information that are not available to it and prepared in the ordinary course of its financial reporting practice; and (ii) none of the Company or any of its Subsidiaries or any of their respective directors or officers shall be obligated to adopt resolutions or execute consents to approve or authorize the execution of the Financing; provided, however that this clause (ii) shall not prohibit the adoption or execution of any resolutions or consents effective no earlier than the Closing Date (after giving effect to the Closing) by any Person that will remain or will become an officer or director of the Surviving Company as of the Effective Time. Nothing in this Section 6.11 shall require the Company or any of its Subsidiaries or their respective Representatives to disclose any information to Parent, Parent’s Representatives or the Financing Sources if such disclosure would (x) violate any Applicable Law or Contract or (y) jeopardize the attorney-client privilege, work product doctrine or other legal privilege held by the Company or any of its Subsidiaries. If the Company or any of its Subsidiaries does not provide or cause its Representatives to provide such access or such information in reliance on the immediately preceding sentence, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate to provide the applicable access or information in a way that would not violate such Applicable Law or Contract or jeopardize such privilege. (e) Parent acknowledges and agrees that, other than reasonable out-of-pocket costs and expenses subject to reimbursement pursuant to Section 6.11(c), none of the Company or any of its Subsidiaries or any of their respective Representatives shall have any responsibility for, or incur any Liability to, any Person under any Financing that Parent may obtain in connection with the transactions contemplated by this Agreement or any cooperation provided pursuant to this Section 6.11. (f) Notwithstanding any other provision set forth herein or anything to the contrary contained in the Confidentiality Agreement, Parent or any of its Affiliates may disclose Confidential Information (as defined in the Confidentiality Agreement) of the Company and its Subsidiaries to the Financing Sources (other than any sensitive information that the Company specifically designates in writing may not be disclosed), so long as the Financing Sources are subject to confidentiality undertakings under a binding written confidentiality commitment to Parent that are at least as restrictive as those applicable to Parent with respect to the Company (except that such confidentiality agreement need not contain any explicit or implicit standstill provision). (g) Notwithstanding anything in this Agreement to the contrary, the parties hereto acknowledge and agree that the provisions contained in this Section 6.11 represent the sole obligations of the Company, its Subsidiaries and their respective Representatives with respect to cooperation in connection with the arrangement of any financing (including the Financing) to be obtained by Parent or any of its Subsidiaries with respect to the transactions contemplated by this Agreement and no other provision of this Agreement shall be deemed to expand such obligations. Notwithstanding anything to the contrary contained herein, in no event shall ~~Parent~~ the receipt or ~~its Affiliates be required to pay~~ availability of any ~~fees~~ funds or financing (including, for the avoidance of doubt, the Financing) by Parent, Merger Sub 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~~ their respective Subsidiaries 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 financing~~obligations under this Agreement.

Appears in 3 contracts

Sources: Merger Agreement (Gilat Satellite Networks LTD), Merger Agreement (Comtech Telecommunications Corp /De/), Merger Agreement (Gilat Satellite Networks LTD)

Financing. (a) ~~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 any~~iii) ~~related thereto~~satisfying 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, that~~amount, when taken together with the ~~portion of the Debt Financing that remains available and any cash on hand~~Cash 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 ~~event~~unavailability and the reason therefor. For the purposes of this Agreement (other than as expressly provided otherwise), the term “Debt Financing” shall be deemed to include any Alternative Debt Financing arranged in compliance herewith, and the terms “Debt Commitment Letter” and “Definitive Agreement” shall be deemed to include any commitment letter (or similar agreement) or definitive agreement with respect to any such Alternative Debt Financing; provided, that, notwithstanding anything to the contrary herein, in no event shall any Alternative Debt Financing or amendment with respect to the Debt Commitment Letter be deemed to adversely expand the obligations set forth in this Section 5.17 of the Company and its Subsidiaries. (b) Parent shall 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 ~~may~~in 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 and~~Company to deliver any certificate or take any other action in any personal capacity; (vii) the preparation, in connection ~~therewith~~with 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 applicable~~e) 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 ~~Merger~~Debt 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 ~~financing~~the Subsidiaries or the reputation or goodwill of the Company or any of the Subsidiaries.

Appears in 2 contracts

Sources: Merger Agreement (Starrett L S Co), Merger Agreement (Starrett L S Co)

Appears in 2 contracts

Sources: Merger Agreement (British American Tobacco p.l.c.), Merger Agreement (Reynolds American 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 Date~~conditions 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 amendment~~and 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 any~~iii) ~~related thereto~~satisfy (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 satisfied~~waiver 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 ~~hereof~~of 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 Company~~may 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 ~~Agreement~~Section 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 ~~7.18~~6.09. (b) In the event any funds in the amounts set forth in the Debt Commitment Letter or the Financing Agreements, or any portion thereof, become unavailable on the terms and ~~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 Financing~~occurrence of such event. Notwithstanding anything to the contrary contained in this Agreement, Parent shall have the right from time to time to substitute other committed debt financing or the proceeds of consummated debt or equity transactions, or available cash or cash equivalents, for all or any portion of the Debt Financing from the same and/or any alternative financing source; provided, that, in the case of committed debt financing, any such substitution shall not expand upon in any material respect the conditions precedent or contingencies to the funding on the “Closing Date” of the Debt Financing as set forth in the Debt Commitment Letter (including the “flex” provisions set forth in the Fee Letters) as in effect on the date of this Agreement in a manner that would reasonably be expected to prevent, impede or materially delay the consummation of the transactions contemplated by this Agreement. In such event, the term “Debt Commitment Letter” as used herein shall be deemed to include the new commitment letter (the “New Debt Financing Commitment”), if any, entered into in accordance with this Section 6.09(b) (any financing arranged under this Section 6.09(b) to substitute for all or any portion of the Debt Financing or if any portion of the Debt Financing becomes unavailable shall be referred to as the “Alternate Debt Financing”). Parent will provide the Company with a true, complete and correct copy of any New Debt Financing Commitment obtained by Parent in connection with an Alternate Debt Financing promptly following the execution thereof (other than fees and other information redacted from such agreements that is consistent with the information redacted from the Fee Letters as permitted by Section 3.12(a)). For the avoidance of doubt, if the Debt Financing or the Alternate Debt Financing, as applicable, is available and the conditions to Closing set forth in Section 7.01 and Section 7.03 have been satisfied or waived (other than those conditions that by their nature will be satisfied (or waived) at the Closing, subject to satisfaction or waiver of such conditions at the Closing), Parent shall use its reasonable best efforts to take all actions within its control necessary to incur the Indebtedness provided under the Debt Financing or the Alternate Debt Financing, as applicable, to consummate the Merger, to the extent the proceeds thereof are needed to consummate the Merger. Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 6.09(b) shall require, and in no event shall the reasonable best efforts of Parent be deemed or construed to require, Parent to (i) bring any enforcement action, including commencing or filing any Legal Proceeding, against any Debt Financing Source to enforce its ~~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 ~~Merger~~Company to pay any commitment or other fees, reimburse any expenses or otherwise incur any liabilities that are not ~~subject to~~reimbursed 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 on~~operations 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 Date~~Company a true and complete copy of a fully executed commitment letter (the “Debt Commitment Letter”), dated as of the date hereof, from ▇▇▇▇▇ Fargo Bank, National Association and ▇▇▇▇▇ Fargo Securities, LLC (such institutions, the “Arrangers”). ~~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 amendment~~the 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 satisfied~~to 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 include~~Financing, ~~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) negotiate~~otherwise 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 ~~fees~~the Financing Commitments or any termination of the Financing Commitments. Each of Parent and Merger Sub shall refrain from taking, ~~pricing terms~~directly 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 sources~~the 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 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 (and cause their Affiliates to use) its reasonable best efforts to ~~take~~obtain the Financing on the terms and conditions described in the Financing Commitments as promptly as practicable, ~~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 and finalize definitive agreements with respect thereto on the terms and ~~maintain~~ conditions contained in ~~effect~~ the ~~Debt Commitment Letter (subject to any amendment~~Financing 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,~~ to satisfy on a timely basis all ~~Financing Conditions~~ conditions applicable to ~~the extent within the control of~~ Parent and ~~its Affiliates;~~ Merger Sub set forth in such definitive agreements that are within either of their control or influence and (iii) ~~negotiate, execute~~ to comply with its obligations under the Financing Commitments and ~~deliver Debt~~ consummate the Financing ~~Documents~~ no later than the Closing (subject 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~~ amendment and ~~securitization facilities) and other sources of immediately available funds~~replacement rights described herein)~~, 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 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. Each of Parent, Merger Sub and the Company shall refrain (and shall use their reasonable best efforts to cause their Affiliates to refrain) from knowingly taking, directly or indirectly, any action that would reasonably be expected to result in a failure or any or the conditions contained in the Financing Commitments or in any definitive agreement related to the ~~Debt Commitment Letter~~ Financing. Parent shall keep the Company informed on a reasonable basis and in reasonable detail of ~~which~~ material developments relating to the Financing and the status of its efforts to arrange the Financing. Parent shall not permit any amendment or ~~its Affiliates becomes aware; provided that none~~ modification to be made to, or any waiver of any material provision or remedy under, the Financing Commitments or the definitive agreements related to the Financing if such amendment, modification, waiver or remedy reduces the aggregate amount of the Financing available, amends the conditions to the drawdown of the Financing, adds any condition to funding, or would reasonably be expected to adversely impact or delay in any material respect the ability of Parent or and Merger Sub ~~shall be required~~ to ~~disclose~~ consummate the transactions contemplated hereby or ~~provide~~ materially reduce the likelihood of the consummation of the transactions contemplated hereby or materially reduce the likelihood of any ~~such information~~conditions to funding being satisfied, without first obtaining the ~~disclosure~~ Company’s prior written consent. Subject to the terms and conditions contained herein and satisfaction of ~~which~~the Tender Offer Conditions, in the ~~judgement~~ case of ~~Parent upon advice~~ the Offer, and the conditions set forth in Article VII, in the case of ~~outside counsel~~the Merger, ~~is subject~~ in the event that all conditions to ~~attorney-client privilege~~ the Financing Commitments (other than, in connection with the Debt Financing, the availability or ~~which would be in violation~~ funding of any ~~confidentiality obligation. (c~~of the Equity Financing) In have been satisfied. Parent shall draw down on the ~~event all or~~ Financing required to consummate the Offer on the Acceptance Date and the Merger on the Closing Date. 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~~ Financing Commitments, or Parent becomes aware of any event or circumstance that makes receipt of any portion of the ~~Company’s breach of any provision of this Agreement or failure~~ Financing unlikely to ~~satisfy~~ occur in the ~~conditions set forth~~ manner and from the sources contemplated in ~~Section 8.1 and Annex 1)~~the 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 arrange to obtain alternative financing from ~~the same or~~ alternative ~~Debt Financing Entities~~ sources on terms ~~and conditions, taken as a whole,~~ no less ~~favorable~~ beneficial and in an amount sufficient 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 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,~~ event but in no event later than the End Date. Parent shall deliver to the Company true and complete copies of all definitive agreements pursuant to which any such alternative source shall have committed to provide Parent and Merger Sub with any portion of the Financing. Parent and Merger Sub acknowledge and agree that their respective obligations to consummate the Agreement are not conditioned or contingent upon receipt of the Financing. (~~iii~~b) The Company will and will cause its Subsidiaries to and will use its reasonable best efforts to ~~obtain,~~ cause its and ~~when obtained,~~ their respective Representatives to provide all cooperation reasonably requested by Parent in connection with the arrangement of the Financing (to the extent such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), including (i) participation in a reasonable number of meetings in connection with ~~a true~~ the Financing (including due diligence sessions and ~~complete copy of~~meetings with ratings agencies) on reasonable advance notice, ~~a new~~ (ii) furnishing Parent and its financing ~~commitment that provides for such alternative financing;~~ sources with the financial information required to be provided pursuant to Section 6.12(a) hereof when and as required thereby, (iii) assisting Parent and its financing sources in the preparation of (A) any offering document (provided that any ~~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~~ document need not be ~~redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce~~ issued 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 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 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 to the funding of ~~the Debt Financing~~its Subsidiaries), (B) ~~reduce~~ materials for rating agency presentations, (iv) reasonably cooperating with the ~~amount~~ marketing efforts of Parent and its financing sources, (v) forming new direct or indirect Subsidiaries, (vi) cooperating in the preparation of, and providing and executing (or using reasonable efforts to obtain from its advisors), documents as may reasonably be requested by Parent (including any underwriting or placement agreements, pledge and security documents, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Parent (including a certificate of the ~~Debt Financing~~ Chief Financial Officer of the Company with respect to solvency matters)) and otherwise reasonably facilitating, to the extent reasonably requested by Parent, the pledging of collateral (including cooperation, to the extent reasonably requested by Parent, in connection with the pay-off of existing indebtedness and the release of related Liens); provided, however, that no obligation of the Company or any of its Subsidiaries under any such certificate, document or instrument (other than the ~~net cash proceeds available from~~ representation letter referred to above) shall be effective until the ~~Debt~~ Effective Time, and (vii) taking all actions to the extent reasonably requested by Parent necessary to (A) permit the prospective lenders involved in the Financing to ~~an amount that is less than~~ evaluate the ~~Required Amount~~ Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and (~~after taking into account any cash on hand, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities~~B) establish bank and other ~~sources of immediately available funds)~~accounts and blocked account agreements and lock box arrangements in connection with the foregoing, and (Cviii) ~~prevent or materially delay or make materially less likely~~ taking all corporate actions, subject to the ~~funding~~ occurrence of the ~~Debt Financing (or the satisfaction of the Financing Conditions) on the Closing Date or materially impair~~Closing, ~~delay or prevent~~ reasonably requested by Parent in connection with the consummation of the ~~transactions contemplated by this Agreement, including~~ Financing prior to the ~~Offer and the Merger~~Acceptance Time. The foregoing notwithstanding, (Dx) ~~materially adversely affect Parent’s ability~~ prior to ~~consummate~~ the ~~transactions contemplated~~ New Directors Time, no Pre-Acceptance Date Director shall be required to take any action with respect to the foregoing and neither the Company nor any of its Subsidiaries shall be obligated to take any action that requires action or approval by ~~this Agreement~~the Pre-Acceptance Date Directors prior to the New Directors Time, ~~including~~ (y) no obligation of the ~~Offer and the Merger or (E) materially adversely impact the ability of Parent~~ Company or any of its ~~Affiliates’~~ Subsidiaries or Representatives under any agreement, certificate, document or instrument relating to ~~enforce their respective rights against~~ the ~~Debt~~ Financing ~~Sources~~ and executed or delivered pursuant to this Section 6.11(b) shall be effective until the Effective Time, and (z) none of the Company or any of 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 its Subsidiaries 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~~ commitment or other similar fee or incur any ~~interest rates applicable~~ other cost or expense (other than reasonable out-of-pocket costs, which shall be reimbursed by Parent pursuant to this Section 6.11(b)) prior to the ~~Alternative Financing in excess of those contemplated~~ Acceptance Time. Parent shall, promptly upon request by the ~~Debt Commitment Letter as~~ Company, reimburse the Company for all reasonable out-of-pocket costs incurred by the Company or its Subsidiaries in ~~effect on~~ connection with such cooperation and shall indemnify and hold harmless the ~~date hereof (including~~ Company, its Subsidiaries and their respective Representatives for and against any and all losses suffered or incurred by them in connection with 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~~ arrangement of the Debt ~~Commitment Letter as~~ Financing and any information utilized in ~~effect on~~ connection therewith (other than information provided by the ~~date hereof (including the market flex provisions (if any)~~Company or its Subsidiaries). ~~Parent and Merger Sub expressly acknowledge and agree that their obligations under this Agreement~~All nonpublic or otherwise confidential information regarding the Company obtained by Parent, ~~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~~, their Representatives or their financing sources pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Stealth Acquisition Corp.), Merger Agreement (Safenet 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 IX~~the 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 ~~taken~~satisfied or complied with by it thereunder which are conditions to closing thereunder; provided, ~~all actions~~however, 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 advisable~~assist 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)

Appears in 2 contracts

Sources: Merger Agreement (Flir Systems Inc), Merger Agreement (Teledyne Technologies Inc)

Financing. (a) ~~From~~ Subject to the ~~date~~ terms and conditions of this ~~Agreement~~ Section 7.07, RMT Parent shall, and shall cause its Affiliates to, use reasonable best efforts to (i) cause the conditions and comply with the obligations that are set forth in the RMT Commitment Letter applicable to, and within the control of or that require the cooperation of, RMT Parent to be fulfilled (or waived, if deemed advisable by RMT Parent) in a timely fashion in accordance with its terms, (ii) maintain the RMT Commitment Letter in effect until the earlier of the ~~Effective Time~~ initial funding of the RMT Financing or the ~~termination~~ date that the RMT Financing Agreements (as defined below) become effective, (iii) negotiate definitive agreements with respect thereto, on the terms and conditions contained therein (including the “market flex” provisions) or on such other terms that would not be prohibited by clauses (i) through (iv) of Section 7.07(d) (the “RMT Financing Agreements”) and (iv) if all conditions precedent under the RMT Commitment Letter or the RMT Financing Agreements have been satisfied, on the Closing Date, cause the RMT Lenders to fund the RMT Financing and RMT Borrower to consummate the RMT Financing Transactions if all conditions to Closing contained in Article VIII are, or on the Closing Date can reasonably be expected to be, satisfied or waived (by the applicable party that is the beneficiary of such condition). In the event any funds in the amounts set forth in the RMT Commitment Letter or the RMT Financing Agreements, or any portion thereof, become unavailable on the terms and conditions (including any applicable “flex” terms) contemplated in the RMT Commitment Letter or the RMT Financing Agreements, RMT Parent shall, and shall cause its Affiliates to use reasonable best efforts, subject to Section 7.07(d), to obtain promptly any such portion from alternative sources, including on terms materially no less favorable, in the aggregate, to RMT Parent than those set forth in the RMT Commitment Letter (in each case as determined in the reasonable discretion of RMT Parent), in an amount sufficient, when added to the portion of the RMT Financing that is available, to finance the RMT Financing Transactions (the “RMT Alternative Financing”) and provide promptly to GPC a copy of any new financing commitment letter and any associated fee letters (solely in the case of any administrative agent fee letter, redacted in a customary manner solely with respect to the fees payable and economic terms (other than covenants) that are confidential, none of which redacted provisions would reduce the aggregate principal amount of such RMT Alternative Financing, impose additional conditions with respect thereto, or otherwise affect the enforceability or availability of such RMT Alternative Financing) (collectively, the “Alternative RMT Commitment Letter”); provided that the terms of any such RMT Alternative Financing must be consistent with the Intended Tax Treatment, as reasonably determined by GPC. In the event any RMT Alternative Financing is obtained, notwithstanding anything herein to the contrary, any reference in this Agreement to “RMT Financing” shall include “RMT Alternative Financing,” any reference to “RMT Commitment Letter” shall include the “Alternative RMT Commitment Letter,” any reference to “RMT Lenders” shall include the financial institutions providing such RMT Alternative Financing, and any reference to “RMT Financing Agreements” shall include any definitive agreements with respect to the Alternative RMT Commitment Letter, and all obligations of RMT Parent pursuant to this Section 7.07 shall be applicable thereto to the same extent as RMT Parent’s obligations with respect to the RMT Financing. For the avoidance of doubt, if the Marketing Period has ended, the RMT Financing is available, and all conditions to the Closing set forth in Article VIII have been satisfied or waived or will be satisfied or waived at the Closing, RMT Parent shall take all actions within its control reasonably necessary to allow RMT Borrower to incur the indebtedness provided under the RMT Financing to consummate the RMT Financing Transactions. (b) Subject to the terms and conditions of this ~~Agreement in accordance with Article IX~~Section 7.07, ~~Parent~~ GPC and ~~its~~ SpinCo shall, and shall cause their respective Affiliates ~~shall~~ 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, 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~~ SpinCo Commitment Letter ~~(subject to any amendment~~applicable to, 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 and within the control of ~~Parent and~~ or that require the cooperation of, GPC or SpinCo to be fulfilled (or waived, if deemed advisable by GPC or SpinCo) in a timely fashion in accordance with its ~~Affiliates;~~ terms, (ii) maintain the SpinCo Commitment Letter in effect until the earlier of the initial funding of the SpinCo Financing or the date that the SpinCo Financing Agreements (as defined below) become effective, (iii) ~~negotiate~~negotiate definitive agreements with respect thereto, ~~execute~~ on terms and ~~deliver Debt Financing Documents~~ conditions acceptable to ~~the extent required to pay the Required Amount (after taking into account any cash on hand, available lines of credit~~ RMT Parent and 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 thereto~~provisions) or on such other terms acceptable to RMT Parent that would not ~~constitute an Adverse Effect~~ be prohibited by Section 7.07(e) (the “SpinCo Financing Agreements” and, together with the RMT Financing Agreements, the “Financing Agreements”) and (iv) if all conditions precedent under the SpinCo Commitment Letter or the SpinCo Financing Agreements have been satisfied, cause the SpinCo Lenders to fund the SpinCo Financing prior to or substantially contemporaneously with the Distribution and to consummate the SpinCo Financing Transactions if all conditions to Closing contained in Article VIII are, or, on ~~Financing as compared~~ the Closing Date can reasonably be expected to ~~those~~ be, satisfied or waived (by the applicable party that is the beneficiary of such condition). In the event any funds in the amounts set forth in the ~~Debt~~ SpinCo Commitment Letter ~~delivered~~ or the SpinCo Financing Agreements, or any portion thereof, become unavailable on the terms and conditions (including any applicable “flex” terms) contemplated in the SpinCo Commitment Letter or the SpinCo Financing Agreements, GPC and SpinCo shall, and shall cause their respective Affiliates to, in consultation with RMT Parent, use reasonable best efforts to cause SpinCo to obtain promptly any such portion from alternative sources, on terms acceptable to RMT Parent, in an amount sufficient, when added to the ~~Company on~~ portion of the ~~date hereof~~SpinCo Financing that is available, to finance the SpinCo Financing Transactions (the “SpinCo Alternative Financing” and, together with any RMT Alternative Financing, the “Alternative Financings” and each, an “Alternative Financing”) and provide promptly to RMT Parent a copy of any new financing commitment letter and any associated fee letters (the “Alternative SpinCo Commitment Letter”); ~~and (iv) in~~ provided that the terms of any such SpinCo Alternative Financing must be consistent with the Intended Tax Treatment, as reasonably determined by GPC. In the event ~~that~~ SpinCo Alternative Financing is obtained, any reference in this Agreement to “SpinCo Financing” shall include “SpinCo Alternative Financing,” any reference to “SpinCo Commitment Letter” shall include the ~~Offer Conditions~~ “Alternative SpinCo Commitment Letter,” any reference to “SpinCo Lenders” shall include the financial institutions providing such Alternative Financing, and any reference to “SpinCo Financing Agreements” shall include any definitive agreements with respect to the Alternative SpinCo Commitment Letter, and all obligations of GPC and SpinCo pursuant to this Section 7.07 shall be applicable thereto to the same extent as GPC’s and SpinCo’s obligations with respect to the SpinCo Financing. For the avoidance of doubt, if the SpinCo Financing is available and all conditions to the Closing set forth in Article VIII have been satisfied or waived oror will be satisfied or waived at the Closing, ~~upon funding would be satisfied~~SpinCo shall, and GPC shall cause SpinCo to, take all actions within its control reasonably necessary to cause SpinCo to incur the indebtedness provided under the SpinCo Commitment Letter or the SpinCo Financing Agreements to consummate the ~~Debt~~ SpinCo Financing (Transactions, including by ~~instructing the Debt Financing Sources to fund the Debt Financing in accordance with the Debt Commitment Letter,~~ executing and ~~enforcing Parent’s rights under the Debt Commitment Letter and the definitive agreements relating~~ delivering to the ~~Debt Financing)~~SpinCo Lenders the SpinCo Financing Agreements and related certificates, instruments and documents contemplated thereby, which, in each case, shall be in form and substance satisfactory to RMT Parent. (bc) ~~From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX,~~ RMT Parent and ~~its Affiliates~~ GPC shall each give the ~~Company~~ other prompt written notice (i) of any material ~~breach, repudiation~~ 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 ~~repudiation~~ default) by any party to the ~~Debt~~ Commitment ~~Letter~~ Letters or the 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 Lenders, (iii) of the receipt of any written notice of any material dispute or disagreement between or among any of the parties to the Commitment Letters or the Financing Agreements, (iv) of any amendment or modification of, or waiver under, the Commitment Letters or the Financing Agreements to which ~~Parent~~ such Person (or its Affiliate) is a party or (v) if for any reason either believes in good faith that it or its Affiliates ~~becomes aware; provided that none of Parent or Merger Sub shall~~ 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 timely obtain all or any portion of the ~~Debt~~ RMT Financing or SpinCo Financing, as applicable, on the terms and conditions and in the manner or from the sources (including the RMT Alternative Financing and the SpinCo Alternative Financing, where applicable) contemplated by the RMT Commitment Letter or the SpinCo Commitment Letter, as applicable, or the RMT Financing Agreements or the SpinCo Financing Agreements, as applicable. RMT Parent and GPC shall keep one another informed upon reasonable request and in reasonable detail, as soon as reasonably practicable (but in any event within three Business Days upon receipt of such reasonable request) of the status of their (or their Affiliate’s) efforts to arrange the RMT Financing and the SpinCo Financing, as applicable. (d) Notwithstanding anything to the contrary set forth herein, RMT Parent may amend, modify, replace, waive or change any provision in the RMT Commitment Letter or any of the RMT Financing Agreements; provided that any such amendment, modification, replacement, waiver or change must be consistent with the Intended Tax Treatment, as reasonably determined by GPC; provided, further, that RMT Parent shall not permit or agree to any such amendment, modification, replacement, waiver or change to be made to the RMT Commitment Letter or any of the RMT Financing Agreements without obtaining the prior written consent of GPC, that would (i) change, amend, expand or modify the conditions precedent set forth therein, or impose new or additional conditions, in each case in any manner that would reasonably be expected to prevent or materially delay the consummation of the RMT Financing, (ii) reduce the aggregate cash amount of the RMT Financing such that the aggregate funds that would be available to RMT Parent upon the closing of the RMT Financing would not be sufficient to fund the RMT Financing Transactions, (iii) decrease the aggregate cash amount of the RMT Financing as set forth in the RMT Commitment Letter or the RMT Financing Agreements such that such aggregate amount is less than the aggregate cash amount to be funded upon the closing thereof as set forth in the RMT Commitment Letter as of the date hereof or (iv) amend or modify any other term or provision in a manner that would reasonably be expected to prevent, materially delay or materially impair the ability of RMT Parent and Merger Sub to consummate the transactions contemplated by this Agreement or adversely impact, in any material respect, the ability of RMT Parent to enforce its rights against the other parties to the RMT Commitment Letter or any of the RMT Financing Agreements. Notwithstanding anything to the contrary set forth herein, RMT Parent may modify, supplement, or amend the RMT Commitment Letter or any of the RMT Financing Agreements, (x) to add lead arrangers, bookrunners, syndication agents, documentation agents, lenders or similar entities that have not executed the RMT Commitment Letter as of the date hereof and (y) to implement or exercise any market flex provisions provided in, the RMT Commitment Letter as in effect as of the date hereof or, subject to Section 7.07(a), as in effect as of the date that an Alternative RMT Commitment Letter becomes effective. In such event, the term “RMT Commitment Letter” as used herein shall be deemed to include the new or amended commitment letters (including all exhibits, schedules, and attachments thereto) and fee letters entered into in accordance with this Section 7.07(d), the term “RMT Financing” as used herein shall be deemed to include any substitute financing obtained in accordance with this Section 7.07(d), and the term “RMT Financing Agreements” shall be deemed to include the new or amended definitive agreements with respect to the RMT Financing entered into in accordance with this Section 7.07(d); provided, however, that in the event any portion of the RMT Financing becomes unavailable on the terms and conditions contemplated by in the ~~Debt~~ RMT Commitment Letter ~~(including~~ or the ~~flex provisions (if any~~RMT Financing Agreements, the second sentence of Section 7.07(a)~~) (other than as a result of~~ , and not this Section 7.07(d), shall govern with respect to the ~~Company’s breach~~ terms of any ~~provision of this Agreement or failure~~ replacement financing 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 be obtained after 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~~ RMT Financing ~~that remains available~~ becomes unavailable as described therein. Promptly after the effectiveness thereof, RMT Parent shall deliver to GPC true and ~~any cash on hand~~correct copies of all amendments, ~~available lines of credit (including under Borrower’s existing revolving credit~~ modifications, replacements, waivers and ~~securitization facilities) and other sources of immediately available funds, is at least equal~~ changes 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 RMT 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~~after the effective date thereof, ~~amend~~ the ~~economic and other arrangements with respect to such appointments, (2) modify pricing, (3) terminate or reduce any commitments under the Debt~~ RMT 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 FinancingAgreements.” 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 (Rhino SpinCo, Inc.), Merger Agreement (Genuine Parts 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,~~ 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 to~~the 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) ~~satisfy~~participation by senior management of Ultimate Parent in, ~~or obtain a waiver thereof~~and assistance with, the preparation of rating agency presentations and meetings with rating agencies; (iii) satisfying on a timely basis all Financing Conditions applicable to Ultimate Parent in the ~~extent~~ Debt Commitment Letter that are within ~~the control of Parent and~~ its ~~Affiliates~~control; (~~iii~~iv) ~~negotiate~~negotiating, ~~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 hereof~~and 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 below~~determined 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 hereof~~Letter), ~~that~~in 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 (~~iii~~C) ~~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 ~~Company~~Company (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 ~~Agreement~~Section 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 financing~~efforts to arrange the Debt Financing.

Appears in 2 contracts

Sources: Merger Agreement (St Jude Medical Inc), Merger Agreement (Thoratec Corp)

Appears in 2 contracts

Sources: Merger Agreement (Arbitron Inc), Agreement and Plan of Merger (Nielsen Holdings 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,~~ Parent and ~~its Affiliates shall~~ Merger Sub will 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~~necessary, proper and advisable to arrange and obtain the ~~Debt~~ proceeds of the Financing on the terms and conditions described in the Commitment Letter, including using reasonable best efforts to ~~consummate~~ (i) maintain in full force and effect the ~~Debt~~ Commitment Letter, (ii) negotiate definitive financing agreements with respect to the Financing on terms and conditions that are not materially less favorable to Parent and Merger Sub than the terms and conditions contemplated by the Commitment Letter and enter into, on or prior to the Closing Date~~. Such actions shall include~~, ~~but not be limited to~~definitive financing agreements with respect to the Financing, ~~using reasonable best efforts to:~~ and promptly upon execution thereof provide executed copies of such definitive agreements to the Company, (iiii) 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~~ (or obtain the ~~extent within the control of Parent and its Affiliates;~~ waiver of) (~~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~~the expected timing of the Closing) all conditions and covenants, ~~available lines of credit (including under Borrower’s existing revolving credit~~ and ~~securitization facilities)~~ otherwise comply with all terms and ~~other sources of immediately available funds)~~conditions, ~~which shall reflect the terms contained~~ applicable to Parent and Merger Sub in the ~~Debt~~ Commitment Letter ~~(including any “market flex” provisions (if any) related thereto) or on~~ and 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~~ definitive agreements within their control, (iv) in consummate the Financing at or prior to Closing, and (v) enforce their rights under the Commitment Letter. In the event that all conditions to the ~~Offer Conditions~~ Commitment Letter have been satisfied ~~or waived~~ or, upon funding ~~would~~ will be satisfied, ~~consummate~~ Parent and Merger Sub shall use their reasonable best efforts to cause the ~~Debt Financing (including by instructing the Debt~~ Financing Sources and the other Persons providing or committing to ~~fund~~ provide the ~~Debt~~ Financing ~~in accordance~~ to comply with ~~the Debt Commitment Letter, and enforcing Parent’s rights~~ their obligations under the ~~Debt~~ Commitment Letter and the definitive financing agreements ~~relating~~ entered into in connection with the Financing and to fund on or before the ~~Debt~~ Closing Date the Financing required to consummate the Merger and the other transactions contemplated by this Agreement (including taking enforcement action, to cause the Financing Sources and the other Persons providing or committing to provide the Financing to fund such Financing)~~. (b) From~~ . Parent and Merger Sub will keep the ~~date of this Agreement until the earlier~~ Company informed on a reasonably current basis of the ~~Effective Time or~~ status of their efforts to arrange the ~~termination of this Agreement in accordance with Article IX~~Financing and to satisfy the conditions thereof, ~~Parent and its Affiliates shall give~~ including (A) promptly notifying the Company ~~prompt notice~~ of (1) any ~~material breach~~actual, ~~repudiation~~ threatened or ~~threatened~~ alleged material breach or ~~repudiation~~ default by any party to the ~~Debt~~ Commitment Letter ~~of which Parent~~ or ~~its Affiliates becomes aware; provided that none~~ any definitive financing agreement entered into in connection with the Financing, if such breach or default would reasonably be expected to affect the timely availability of, or the amount of, the Financing and (2) the receipt by any of Parent or Merger Sub ~~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~~ their respective Representatives of any ~~confidentiality obligation. (c) In the event all~~ notice or other communication from any Financing Source or any ~~portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt~~ other Person with respect to any material dispute or disagreement between or among any parties to any Commitment Letter ~~(including the flex provisions (if any)) (other than as a result of the Company’s breach of~~ or any ~~provision of this Agreement or failure to satisfy the conditions set forth~~ definitive financing agreement entered into 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~~Financing, 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 if 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 dispute or disagreement would reasonably be expected to ~~reduce~~ affect the ~~aggregate principal~~ timely availability of, or amount of, the Financing, and (B) upon the Company’s reasonable request, advising and updating the Company, in a reasonable level of ~~such alternative financing to be funded on the Closing Date or impose additional conditions precedent~~ detail, with respect to the status (and any material developments concerning such status) and proposed 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~~ thereunder. Without the prior written consent of the Company, Parent and ~~its Affiliates shall~~ Merger Sub will not ~~amend~~agree, ~~modify~~permit, ~~supplement~~or otherwise consent, ~~restate~~to any amendment of, ~~assign~~supplement or modification to, ~~substitute~~ or ~~replace~~ waiver under, the ~~Debt~~ Commitment Letter or ~~any Debt~~ the definitive agreements relating to the Financing ~~Document~~ if such amendment, ~~modification,~~ supplement, ~~restatement, assignment, substitution~~ modification or ~~replacement~~ waiver (x) would ~~(A) impose additional conditions precedent or expand upon~~ reduce the ~~conditions precedent to the funding~~ aggregate cash amount of proceeds of the ~~Debt Financing,~~ Financing (~~B) reduce~~ including by changing the amount of fees to be paid or original issue discount 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 fundsFinancing), (Cy) would change or impose new or additional conditions or otherwise expands or amends any of the conditions to the receipt of the Financing from those set forth in the Commitment Letter on the date of this Agreement or (z) would otherwise reasonably be expected to (1) prevent or materially delay ~~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~~ (2) make the ~~consummation~~ timely funding of the ~~transactions contemplated by this Agreement, including~~ Financing or satisfaction of the ~~Offer and~~ conditions to obtaining the ~~Merger~~Financing less likely to occur, (~~D) materially adversely affect Parent’s ability to consummate~~ collectively, 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 “Restricted Commitment ~~Letters or the definitive agreements with respect thereto (clauses (A) through (E~~Letter Amendments”), ~~each an “Adverse Effect on Financing”); provided that~~ other than a waiver of any closing conditions by lender(s) or their agents. Parent ~~may, without~~ and Merger Sub may amend the ~~prior written consent of the Company, amend, modify, supplement, restate, assign, substitute or replace the Debt~~ Commitment ~~Letter, including (1)~~ Letter 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~~of this Agreement, if the addition of such additional parties, individually or in ~~connection therewith~~the aggregate, ~~amend~~ would not result in the ~~economic~~ occurrence of a Restricted Commitment Letter Amendment. In addition, Parent and ~~other arrangements with respect~~ Merger Sub shall not permit or consent to ~~such appointments, (2) modify pricing, (3) terminate or reduce~~ any ~~commitments~~ waiver of any remedy under the ~~Debt Financing in order~~ Commitment Letter or to ~~obtain alternative sources of debt financing in lieu of all or a portion~~ any early termination 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~~Commitment Letter. 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 the “~~Debt Financing~~Commitment Letter” 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”, such documents as permitted or ~~“Financing” shall include the documents (or commitments or financing sources, as applicable) in connection with any Alternative Financing to the extent permitted~~ required by this Section ~~7.18~~5.11 to be amended, modified, supplemented or waived, in each case from and after the date of such ~~Alternative~~ amendment, supplement, modification or waiver. (b) If, notwithstanding the use of reasonable best efforts by Parent and Merger Sub to satisfy their obligations under this Section 5.11, any of the Financing ~~shall be required to comply with~~ or the ~~provisions of this Agreement~~ Commitment Letter (or any definitive financing agreement relating thereto) expire or are terminated or otherwise become unavailable prior to the ~~same extent as~~ Closing, in whole or in part, for any reason, Parent and Merger Sub will (i) promptly notify the ~~Debt Financing. Notwithstanding anything~~ Company of such expiration, termination or unavailability and (ii) use its reasonable best efforts promptly to arrange for alternative financing (which will be in an amount sufficient to pay, when added to the ~~contrary~~ other resources of Parent and other financing arrangements, the Required Amount) from other sources on terms and conditions not materially less favorable, taken as a whole, to Parent and Merger Sub than the terms and conditions of the Financing contained in ~~this Agreement, in no event shall Parent~~ the Commitment Letter to replace the Financing contemplated by such expired or ~~its Affiliates be required to pay any fees~~ terminated or ~~any interest rates applicable~~ unavailable commitments or agreements (“Alternative Financing”). Copies of each commitment letter and other agreement relating to the Alternative Financing ~~in excess~~ (the “Alternative Commitment Letters”) shall be promptly provided to the Company (except for customary engagement letters and fee letters, redacted copies 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)which fee letters will be delivered). ~~Parent and Merger Sub expressly acknowledge and agree that their obligations under~~ If applicable, references in this ~~Agreement, including their obligations to consummate the Offer and the Merger, are not subject~~ Agreement to~~, or conditioned on, Parent’s or Merger Sub’s receipt of financing.~~

Appears in 2 contracts

Sources: Merger Agreement (Rockwood Holdings, Inc.), Merger Agreement (Albemarle Corp)

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 IX~~any event within ten (10) Business Days of delivery by Pluto of a written request therefor accompanied by reasonable supporting documentation evidencing such Financing Obligations) and (B) indemnify and hold harmless Pluto, ~~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 ~~advisable~~the 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 below~~2) ~~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 ~~Merger~~Spinco 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 (E~~their 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~~ Parent has delivered to the Company true, complete and correct copies of (i) an executed equity commitment letter in effect as of the date hereof, including all exhibits, schedules, annexes and amendments thereto (the “Equity Commitment Letter”) from the Guarantors, pursuant to which the Guarantors have committed to provide to Parent, subject to the terms and conditions therein, equity financing in the amount set forth therein for the purposes of financing a portion of the aggregate Merger Consideration, Warrant Consideration and LTI Award Consideration payable at the Closing under this Agreement ~~until~~ (the ~~earlier~~ “Equity Financing”), which Equity Commitment Letter provides that the Company is a third party beneficiary thereof and is entitled to enforce such agreements, in each case to the extent expressly provided for in the enforcement provisions of the Equity Commitment Letter, and (ii) an executed debt financing commitment letter from the Lenders in effect as of the date hereof, including all exhibits, schedules, annexes and amendments thereto, and each fee letter associated therewith (collectively, the “Fee Letter,” and together with such debt financing commitment letter, the “Debt Commitment Letter” and, together with the Equity Commitment Letter, the “Commitment Letters”) (it being understood that the Fee Letter may be customarily redacted; provided, however, that no provisions that, or that could reasonably be expected to, adversely affect the availability of or impose additional conditions on, the availability of the Debt Financing at the Effective Time or may be redacted), pursuant to which the ~~termination of this Agreement in accordance with Article IX~~Lenders have committed to provide to Parent and/or Merger Sub, 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 subject to the ~~Closing Date~~terms and conditions therein, debt financing in the amounts set forth therein (the “Debt Financing” and, together with the Equity Financing, the “Financing”). ~~Such actions shall include~~There are no side letters or other agreements, ~~but not~~ Contracts, understandings or arrangements to which Parent or Merger Sub is a party that could reasonably be ~~limited to, using reasonable best efforts to~~expected to adversely affect the availability of the Financing other than as expressly set forth in the Commitment Letters delivered to the Company pursuant to this Section 4.9(a) (it being understood and agreed that: (i) ~~comply with and maintain in effect the Debt Commitment Letter (subject to any amendment, supplement, replacement, substitution, termination~~ Parent or a subsidiary thereof may issue senior notes 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~~ securities in lieu of all or a portion of the senior bridge facility referred to in the Debt ~~Financing and/or~~ Commitment Letter, (4ii) ~~increase~~ Parent or its affiliates may, in its or their sole and absolute discretion (but shall not be required to), issue preferred equity at the ~~aggregate amount~~ Closing (in lieu of the ~~Debt~~ senior notes or other debt securities in lieu of a portion of the senior bridge facility) to Permitted Preferred Purchasers, and (iii) Permitted Co-Investors may be added to the Equity Commitment Letter or deliver an equity commitment letter of their own in substantially similar form (except for amount) to the Equity Commitment Letter for a portion of the Equity Financing). (b) As of the date of this Agreement: (i) each Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of each of the Guarantors, Parent and Merger Sub, as applicable, and to the knowledge of Parent, each of the other parties thereto, in each case, ~~so long~~ except as enforcement may be limited by general principles of equity, whether applied in a court of Law or a court of equity, and by bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting creditors’ rights and remedies generally; (ii) each Commitment Letter has not been amended or modified in any respect and no such amendment or modification is contemplated or pending (other than amendments ~~would not be reasonably expected~~ or modifications 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~~Commitment Letter solely (A) to add lenders, ~~substitute or replacement debt financing obtained by Parent in accordance with this paragraph~~ lead arrangers, bookrunners, syndication agents and ~~the previous paragraph is the “Alternative Financing.” For purposes of this Agreement~~similar entities, 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~~B) in connection with the implementation of any ~~Alternative Financing to the extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the~~ “market flex” 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 “securities demand” terms contained in the Debt Commitment Letter, (C) to implement a Replacement Commitment Facility (as defined in the Debt Commitment Letter entered into as ~~in effect on~~ of the date ~~hereof~~ hereof) or issue preferred equity at the Closing (~~including~~ in lieu of the ~~market flex provisions~~ senior notes or other debt securities in lieu of a portion of the senior bridge facility) to Permitted Preferred Purchasers, and (~~if any~~D) amendments to the Equity Commitment Letter to add Permitted Co-Investors or to replace a portion of the Equity Financing with a substantially similar equity commitment letter of any Permitted Co-Investor); and (iii) the commitments contained in the Commitment Letters have not been withdrawn, terminated, reduced or rescinded in any respect (other than as permitted in the immediately preceding clause (ii)(D)). As of the date of this Agreement, Parent has paid (or caused to be paid) in full any and all fees (including commitment fees and other fees) required to be paid under the Debt Commitment Letter that are payable on or prior to the date of this Agreement. (c) As of the date of this Agreement, there are no conditions precedent or other contractual contingencies (including pursuant to any “flex” provisions in the Fee Letter or otherwise) related to the funding of the full amount (or any portion) of the Financing except as expressly set forth in the Commitment Letters. As of the date of this Agreement, to the knowledge of the Parent, no event has occurred which (with or without notice, lapse of time or both) would reasonably be expected to constitute a failure to satisfy a condition precedent to be satisfied by any Guarantor, Parent or Merger Sub, as applicable, for the Guarantors’ and Lenders’ obligations to fund the Equity Financing and Debt Financing, respectively. (d) Assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, completion of the Marketing Period and that the Financing is funded in accordance with the Commitment Letters, the net proceeds contemplated by the Commitment Letters, will, in the aggregate, constitute the funds necessary to satisfy Parent’s and Merger Sub’s payment obligations under this Agreement at the Effective Time, including payment in cash of the aggregate Merger Consideration, Warrant Consideration and LTI Award Consideration payable at the Effective Time, refinancing of the Company’s indebtedness outstanding under the Credit Agreement and the 2021 First Lien Notes (in each case, including all applicable interest, fees and premiums), and to pay all related fees and expenses required to be paid by Parent and Merger Sub ~~expressly acknowledge and agree that their obligations under this Agreement, including their obligations to consummate the Offer and~~ in connection with the Merger, ~~are~~ in each case, at the Effective Time (such amount, the “Required Financing Amount”). (e) Parent has caused to be delivered to the Company a true, complete and correct copy of the duly executed Limited Guarantee. The Limited Guarantee is in full force and effect, has not ~~subject to~~been amended, modified, withdrawn or ~~conditioned on~~rescinded in any respect, ~~Parent’s~~ and is the legal, valid, binding and enforceable obligation of each of the Guarantors. As of the date hereof, no event has occurred or ~~Merger Sub’s receipt~~ circumstance exists which, with or without notice, lapse of ~~financing~~time or both, would constitute a default or breach on the part of any Guarantor under the Limited Guarantee.

Appears in 2 contracts

Sources: Merger Agreement (Moneygram International Inc), Merger Agreement (Moneygram International Inc)

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 IX~~the 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 (d~~B) ~~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) negotiate~~Acquisition 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 7.18~~Company 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 any~~the "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 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 its reasonable best efforts to, and shall use its reasonable best efforts to ~~take~~cause each of its respective Affiliates and Representatives to, take all actions and do all things necessary, proper or advisable to obtain the net proceeds of the Financing, or ~~cause to be taken~~any Substitute Financing, ~~all actions~~in each case, on the terms 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~~ subject only 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 conditions expressly set forth in the ~~Debt~~ Financing Commitment ~~Letter~~ Letters (including any “market flex” provisions set forth in any Debt Letter) and subject to any modifications permitted by this Section 5.04 at or prior to the Closing Date, including (~~if any~~i) ~~related thereto~~maintaining in effect the Financing Commitment Letters and complying with all of their respective obligations thereunder to the extent required as a condition to accessing such Financing, (ii) negotiating, entering into and delivering definitive agreements with respect to the Financing (the “Definitive Agreements”) on the terms contained in the Financing Commitment Letters (including any “market flex” provisions set forth in any Debt Letter) (or ~~on such~~ with other terms reasonably acceptable to Parent ~~that would not constitute an Adverse Effect on Financing as compared~~ and without any Prohibited Modifications) and subject only to ~~those~~ the conditions expressly set forth in the ~~Debt~~ Financing Commitment ~~Letter delivered to the Company~~ Letters on the date ~~hereof;~~ of this Agreement, (iii) satisfying on a timely basis all conditions in the Financing Commitment Letters and the Definitive Agreements that are applicable to Parent or any of its Affiliates or Representatives that are within their control, (iv) if required under the Debt Letters, entering into amendments to the Definitive Agreements with respect to the Debt Financing to give effect to any “market flex” provisions contained in any Debt Letter and (v) subject to the satisfaction of the conditions set forth in Section 7.01 and Section 7.03 (other than those conditions to be satisfied substantially concurrently with the Closing), consummating, and obtaining the net proceeds of, the Financing no later than the Closing. (b) In the event that ~~the Offer Conditions~~ all conditions set forth in Article VII have been satisfied or waived or, upon funding ~~would~~ shall be ~~satisfied~~satisfied or waived, ~~consummate~~ each of Parent and Merger Sub shall use its reasonable best efforts to, and shall use its reasonable best efforts to cause each of their respective Affiliates and Representatives to, cause each applicable Person that is a party to any of the ~~Debt~~ Financing ~~(including by instructing the Debt Financing Sources~~ Commitment Letters to fund the ~~Debt~~ Financing in accordance with its terms on the Closing Date to the extent the proceeds thereof are required to pay the Required Amount and consummate the Merger and the other transactions contemplated thereby. Each of Parent and Merger Sub shall not, and shall use its reasonable best efforts to cause its Affiliates and Representatives not to, take or refrain from taking, directly or indirectly, any action that would reasonably be expected to result in a failure of the Financing (other than as expressly provided by the Debt Letters in respect of the “Backstop Revolving Credit Facility” and the “Backstop L/C Facility” (as such terms are defined in the Debt Commitment Letter, )) to be available and ~~enforcing Parent’s rights under~~ funded in the Required Amount at or prior to the Closing; provided that Parent shall be permitted to terminate commitments in respect of the “Backstop Term Loan Facility” (as such term is defined in the Debt Commitment ~~Letter~~ Letter). (c) Upon reasonable request by the Company from time to time, Parent shall keep the Company reasonably informed on a current and timely basis of the ~~definitive agreements relating~~ status of Parent’s efforts to obtain the Financing and to satisfy the conditions thereof, including advising and updating the Company, in a reasonable level of detail, with respect to status, proposed closing date of the Financing and material terms of the Definitive Agreements and providing copies of substantially final drafts of the primary Definitive Agreements (including, with respect to the Debt Financing). , the credit agreement) with sufficient time for the Company to review with its counsel (bprovided that any fee letter and any engagement letter for the placement of debt securities may be redacted solely as to fee amounts and other economic terms (including any such terms included in the “market flex”) ~~From~~ that are customarily redacted in connection with similar financings and that could not adversely affect the ~~date of this Agreement until the earlier~~ conditionality, enforceability, amount, availability or termination of the ~~Effective Time or~~ Financing). Without limiting the ~~termination~~ generality of ~~this Agreement in accordance with Article IX~~the foregoing, Parent ~~and its Affiliates~~ shall give the Company prompt written notice (i) of any ~~material breach, repudiation or threatened material~~ breach or ~~repudiation~~ default (or alleged or purported breach or default), or any event or circumstance that (with or without notice, lapse of time or both) would reasonably be expected to give rise to any breach or default, by any party to any of the ~~Debt~~ Financing Commitment ~~Letter of which Parent~~ Letters or ~~its Affiliates becomes aware; provided that none of Parent or Merger Sub shall be required to disclose or provide any such information~~Definitive Agreements, ~~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~~ (ii) of any ~~confidentiality obligation.~~ termination or repudiation (cor alleged or purported termination or repudiation) In of any of the ~~event~~ Financing Commitment Letters or Definitive Agreements, and (iii) if for any reason at any time Parent believes that it may not be able to obtain all or any portion of the ~~Debt~~ Financing ~~becomes unavailable~~ on the ~~terms and conditions~~ terms, in the manner or from the sources contemplated by the ~~Debt~~ Financing Commitment ~~Letter (including~~ Letters or any Definitive Agreement. Parent shall provide any information reasonably requested by the ~~flex provisions (if any)) (other than as a result~~ Company relating to any of the ~~Company’s breach of any provision of this Agreement or failure~~ circumstances referred to ~~satisfy the conditions set forth~~ in ~~Section 8.1 and Annex 1), then Parent and its Affiliates shall~~ clauses (i~~) promptly notify the Company thereof and the reasons therefor~~), (ii) ~~use reasonable best efforts~~ or (iii) of the immediately preceding sentence promptly after the Company makes any such request. (d) Neither Parent nor Merger Sub shall, without the Company’s prior written consent: permit any amendment, supplement, modification, assignment, termination, replacement or waiver to ~~obtain alternative financing from~~ be made to, or consent to any waiver of, any provision of or remedy under any of the ~~same~~ Financing Commitment Letters or ~~alternative Debt~~ Definitive Agreements if such amendment, supplement, modification, termination, assignment, replacement or waiver would or would reasonably be expected to (1) reduce the aggregate amount of the Financing ~~Entities on terms and conditions,~~ (including by increasing the amount of fees to be paid or original issue discount) below the Required Amount (when taken ~~as a whole, no less favorable~~ together with other sources of funds immediately available to Parent ~~than~~ (including additional equity commitments that will be funded at or prior to Closing)); provided that Parent shall be permitted to terminate commitments in respect of the ~~Financing Conditions, not involving any conditions that would constitute an Adverse Effect on Financing~~ “Backstop Term Loan Facility” (as such term is defined ~~below) as compared to those set forth~~ in the Debt Commitment Letter), (2) impose new or additional conditions to the Financing or otherwise expand, amend or modify any of the existing conditions to the Financing, (3) adversely impact the ability of Parent or Merger Sub to enforce its rights against any other party to any of the Financing Commitment Letters or Definitive Agreements or (4) otherwise expand, amend, modify or waive any provision of any of the Financing Commitment Letters or Definitive Agreements in a manner that in any such case would or would reasonably be expected to prevent, delay or make less likely (A) the funding of the Financing in an amount no less than the Required Amount (or satisfaction of the conditions to the Financing) at or prior to the Closing or (B) the timely consummation of the Merger and the other transactions contemplated hereby (the effects described in clauses (1) through (4), the “Prohibited Modifications”); provided that Parent may amend the Debt Letters to add Debt Financing Entities that have not previously executed the Debt Letters as of the date of this Agreement without the prior written consent of the Company. In the event that any new debt or equity commitment letters or fee letters are entered into in accordance with any termination, amendment, replacement, supplement, modification or waiver of any Financing Commitment Letter ~~delivered~~ or Definitive Agreement permitted pursuant to this Section 5.04(d), references to the “Financing,” “Debt Financing Parties,” “Definitive Agreements” and “Financing Commitment Letters” (and other like terms in this Agreement) shall be deemed to refer to the Financing as so terminated, amended, supplemented, modified, waived or replaced for all purposes of this Agreement and each such term shall be construed accordingly. Parent shall promptly deliver to the Company on copies of any termination, amendment, supplement, modification, waiver or replacement of any Financing Commitment Letter or Definitive Agreement and each other agreement entered into in connection therewith (provided that any fee letter may be redacted solely as to fee amounts and other economic terms (including any such terms included in the ~~date hereof~~“market flex”) that are customarily redacted in connection with similar financings and that could not adversely affect the conditionality, ~~that~~enforceability, ~~when taken together with~~ amount, availability or termination of the Financing). (e) If any portion of the Financing becomes, or is expected to become, unavailable for any reason (other than on account of Parent’s termination of commitments in respect of the “Backstop Term Loan Facility” (as such term is defined in the Debt ~~Financing that remains available~~ Commitment Letter)), Parent shall, and ~~any cash on hand, available lines of credit (including under Borrower’s existing revolving credit~~ shall cause its Affiliates and ~~securitization facilities) and other sources of immediately available funds, is at least equal to the Required Amount~~relevant Representatives, as promptly as practicable following the occurrence of such event, to (i) notify the Company in writing thereof and the reason therefor, (ii) use its reasonable best efforts to obtain substitute financing in an amount sufficient, when taken together with any available portion of the Financing, to enable Parent to consummate the Merger and the other transactions contemplated hereby in accordance with its terms (including to pay the Required Amount) and which does not include any Prohibited Modification or condition to the consummation of such substitute financing that is more onerous in any significant respect than the conditions set forth in the Financing Commitment Letters as of the date of this Agreement (any such substitute financing, the “Substitute Financing”) and (iii) use its reasonable best efforts to ~~obtain, and when obtained, provide the Company with a true and complete copy of,~~ obtain a new financing commitment letter that provides for such ~~alternative financing;~~ Substitute Financing and, promptly after execution thereof, deliver to the Company true, complete and correct copies of the new commitment letter and all related fee letters (provided that any ~~provisions set forth~~ such fee letter may be redacted solely as to fee amounts and other economic terms (including any such terms included in the “market flex”) that are customarily redacted in connection with similar financings and that could not adversely affect the conditionality, enforceability, amount, availability or termination of the Financing) and related definitive financing documents with respect to such ~~new~~ Substitute Financing; provided, however, that Parent shall not be required to obtain financing ~~commitment relating to fees, pricing terms,~~ that includes terms and conditions materially less favorable (taking into account any “market flex” ~~provisions (if any~~provisions) ~~and other terms that are customarily redacted (including any dates related thereto) may be redacted~~to Parent, ~~so long as such redaction does not extend~~ relative to ~~any terms that would reasonably be expected to reduce~~ those in 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 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 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 Financingbeing replaced. 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 obtaining 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 (Allete Inc), Merger Agreement (Allete 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, ~~Parent~~ Merger Sub and ~~its Affiliates~~ Merger Sub I shall use its reasonable best efforts (taking into account the expected timing of the Marketing Period) to ~~take,~~ take (or cause to be taken, ) all actions, and ~~use reasonable best efforts~~ to ~~do,~~ 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~~ proceeds of the Debt Financing contemplated by the Debt Financing Commitments on ~~or prior to~~ the ~~Closing Date. Such actions shall include~~terms and conditions described in the Debt Financing Commitments (including any flex provisions applicable thereto), ~~but not be limited to,~~ including using reasonable best efforts ~~to:~~ to (i) negotiate definitive agreements with respect thereto on the terms and conditions (including the flex provisions) contained therein or on other terms not materially less favorable, in the aggregate, to Parent (as determined in the reasonable judgment of Parent) and not in violation of this Section 5.15(a) (including clauses (A)-(C) below), (ii) satisfy (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions applicable to Parent, Merger Sub and Merger Sub I in the Debt Financing Commitments that are within its control and otherwise comply with its obligations thereunder and pay related fees and expenses on the Closing Date, (iii) maintain in effect the Debt ~~Commitment Letter~~ Financing Commitments in accordance with the terms thereof (~~subject to any amendment, supplement, replacement, substitution, termination or other modification or waiver that is~~ except for amendments and supplements not prohibited by ~~clause (d~~this Section 5.15(a)) ~~below); (ii) satisfy~~until the transactions contemplated by this Agreement are consummated or this Agreement is terminated in accordance with its terms, 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 enforce its rights under the Debt ~~Commitment Letter and~~ Financing Commitments in the ~~definitive agreements relating to the Debt Financing). (b) From the date~~ event 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 a 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 counterparty thereto that would reasonably be expected to ~~reduce~~ materially impede or delay the ~~aggregate principal amount of~~ Closing. Parent shall have the right from time to time to amend, supplement, amend and restate or modify the Debt Financing Commitments; provided, that any such ~~alternative financing to be funded on the Closing Date~~ amendment, supplement, amendment and restatement 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 IXother modification shall not, 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 Company (A) ~~impose additional conditions precedent~~ add new (or ~~expand upon the~~ adversely modify any existing) conditions precedent to the ~~funding of~~ Debt Financing as set forth in the Debt ~~Financing~~Financing Commitments as in effect on the date hereof, (B) reduce the aggregate amount of the Debt Financing Commitments (including by changing the amount of fees to be paid or ~~the net cash proceeds available from~~ original issue discount of the Debt Financing as set forth in the Debt Financing Commitments) in a manner that would adversely impact in any material respect the ability of Parent to ~~an amount~~ consummate the Merger or that ~~is less than~~ would otherwise be expected to delay or impede 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 or (C) ~~prevent~~ otherwise be reasonably expected to (I) prevent, impede or ~~materially~~ delay or the consummation of the Merger and the other transactions contemplated by this Agreement, (II) make ~~materially less likely~~ the funding of the Debt Financing ~~(or~~ as set forth in the ~~satisfaction of the~~ Debt 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 Commitments 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~~ Parent, Merger Sub or ~~any of its Affiliates’~~ Merger Sub I to enforce their ~~respective~~ 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 (clauses (A) through (E)~~thereto. For the avoidance of doubt, ~~each an “Adverse Effect on Financing”); provided that~~ but subject to the foregoing, Parent ~~may, without the prior written consent of the Company,~~ may amend~~, modify~~, supplement, amend and restate, ~~assign, substitute~~ modify or replace the Debt ~~Commitment Letter, including~~ Financing Commitments as in effect at the date hereof (1x) to add ~~and appoint additional~~ or replace lenders, lead arrangers, bookrunners, ~~underwriters, agents, lenders and~~ syndication agents or similar ~~Debt Financing Entities that have~~ entities who had not executed the Debt Financing ~~Documents~~ Commitments as ~~in effect on~~ of the date ~~hereof and, in connection therewith, amend~~ of this Agreement or (y) to increase the ~~economic and other arrangements with respect to such appointments, (2) modify pricing, (3) terminate or reduce any commitments under~~ amount of Indebtedness contemplated by 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 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~~Section 5.15, references to “Debt Financing” shall include the financing contemplated by the Debt Financing Commitments as permitted to be amended, supplemented or modified by this Section 5.15(a) (and, if applicable, shall include any Alternative Financing used to satisfy the obligations under this Agreement) 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 (Aecom Technology Corp), Agreement and Plan of Merger (Urs Corp /New/)

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 ~~Borrower~~Parent’s existing revolving credit ~~and securitization facilities~~facility) and other sources of ~~immediately~~ funds available ~~funds~~to Parent on the Closing Date), which shall reflect the terms contained in the Debt Commitment Letter (including any “market flex” provisions (if any) related thereto) or on such other terms acceptable to Parent that would not constitute an Adverse Effect on Financing (as defined below) as compared to those set forth in the Debt Commitment Letter delivered to the Company on the date hereof; and (iv) in the event that the ~~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 obligation~~Debt 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 1~~except 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 ~~Borrower~~Parent’s existing revolving credit ~~and securitization facilities~~facility) and other sources of ~~immediately~~ funds available ~~funds~~to 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 financing~~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~~ 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 ~~Company~~Company (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 Borrower~~Parent’s existing revolving credit ~~and securitization facilities~~facility) and other sources of ~~immediately~~ funds available ~~funds~~to Parent on the Closing Date), (C) prevent or materially delay or make materially less likely the funding of the Debt Financing (or the satisfaction of the Financing Conditions) on the Closing Date or materially impair, delay or prevent the consummation of the 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 ~~7.18~~5.21, and such Alternative Financing shall be required to comply with the provisions of this Agreement to the same extent as the Debt ~~Financing~~Financing contemplated by the Debt Commitment Letter. Notwithstanding anything to the contrary contained in this Agreement, in no event shall Parent or its Affiliates be required to pay any fees or any interest rates applicable to the Alternative Financing in excess of those contemplated by the Debt Commitment Letter as in effect on the date hereof (including the market flex provisions (if any)) or agree to any term (including any market flex term (if any)) less favorable (taken as a whole) to Parent than such term contained in the Debt Commitment Letter as in effect on the date hereof (including the market flex provisions (if any)). Parent and Parent Merger ~~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. Parent shall procure and have available, as of the 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 Merger, all related fees and expenses required to be paid as of the date of the consummation of the Merger and the funds to be provided by (or on behalf of) Parent to the Company to enable the Company to fund the repayment or refinancing of the Notes and the Company Credit Agreement, in each case to the extent required to be repaid or refinanced, and the amounts payable pursuant to Sections 6.14(b) and 6.14(c). In furtherance and not in limitation to the foregoing: (a) ~~From~~ Subject to the ~~date~~ terms and conditions of this Agreement ~~until the earlier of the Effective Time or the termination~~ (including clauses (I) and (II) of this ~~Agreement in accordance with Article IX~~Section 6.13(a)), 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 and obtain the ~~Debt Financing and to consummate~~ proceeds of the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof on or prior to the Closing Date. ~~Such actions~~ Parent shall ~~include~~not, ~~but not~~ without the prior written consent of the Company, (I) permit any amendment, supplement, replacement or modification to be ~~limited~~ made to, ~~using~~ or any waiver of any provision under, the Debt Commitment Letter, if such amendment, supplement, replacement, modification or waiver (A) reduces (or could reasonably be expected to have the effect of reducing) the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount), except (x) to the extent cash on hand is available and will be available as of the Closing Date on the Parent Balance Sheet in an aggregate amount at least equal to the amount of any such reduction or (y) to the extent of the outstanding aggregate principal amount of the Notes with respect to which the Consent Solicitations are successful (but taking into account all amounts payable in connection with the Consent Solicitations, including consent fees, solicitation agent fees and other expenses payable in connection with the Consent Solicitations) or (B) imposes new or additional conditions to the initial funding or otherwise expands, amends or modifies any of the conditions to the receipt of the initial Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter, in each case with respect to clause (B), in a manner that would reasonably be expected (x) taking into account the expected timing of the Marketing Period, to delay or prevent or make less likely the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date or (y) to adversely impact the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto, in each case, as so amended replaced, supplemented or otherwise modified, relative to the ability of the Parent to enforce its rights against such other parties to the Debt Commitment Letter as in effect on the date hereof or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities, so long as such action would not reasonably be expected to materially delay or prevent the Closing or adversely impact Parent’s ability to enforce its rights under the Debt Commitment Letter) or (II) terminate the Debt Commitment Letter unless at the time of such termination such Debt Commitment Letter is replaced with a new commitment letter that, were it structured as an amendment to the Debt Commitment Letter, would satisfy the requirements of the foregoing clause (I) (which replacement commitment letter shall be considered the Debt Commitment Letter hereunder). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall use its reasonable best efforts ~~to:~~ (iA) ~~comply with and~~ to maintain in effect the Debt Commitment Letter (~~subject to any amendment~~as, ~~supplement~~for the avoidance of doubt, ~~replacement~~may be amended, ~~substitution, termination~~ modified 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~~ replaced pursuant to the ~~extent within~~ terms and conditions of this Agreement), (B) to negotiate and enter into definitive agreements with respect to the ~~control of Parent and its Affiliates;~~ Debt Commitment Letter (~~iii) negotiate, execute and deliver~~ the “Debt Financing ~~Documents to the extent required to pay the Required Amount (after taking into account any cash~~ Agreements”) 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 consistent with the terms and conditions contained in the Debt Commitment Letter ~~(including any “market flex” provisions (~~or, if ~~any) related thereto) or~~ available, obtain alternative financing on ~~such~~ other terms that are acceptable to Parent, provided, that (i) Parent ~~that would not constitute an Adverse Effect on Financing as compared~~ promptly provides notice to ~~those~~ the Company of such alternative financing, and (ii) the terms of such alternative financing are (x) in respect of certainty of funding, equivalent in all material respects to (or more favorable to the Company than) the conditions set forth in the Debt Commitment Letter ~~delivered to the Company~~ as in effect on the date ~~hereof;~~ hereof and (ivy) not less beneficial in any material respect to Parent in terms of its ability to enforce its rights in connection with such alternative financing, relative to Parent’s ability to enforce its rights against the ~~event that the Offer Conditions have been satisfied or waived or, upon funding would be satisfied, consummate~~ other parties to the Debt ~~Financing~~ Commitment Letter as in effect on the date hereof or the definitive agreements with respect thereto (~~including by instructing~~ any such permitted replacement, amended, modified or alternative financing to the Debt ~~Financing Sources to fund the Debt Financing in accordance~~ Financing, including any potential issuance of cash convertible or other notes by Parent or its Subsidiaries, collectively with the Debt ~~Commitment Letter~~Financing, the “Available Financing”), (C) to satisfy on a timely basis, taking into account the expected timing of the Marketing Period, and ~~enforcing Parent’s~~ in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Available Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter (or, as applicable, the conditions in connection with other Available Financing), to consummate the Available Financing at or prior to the Closing, (D) to enforce its rights under the Debt Commitment Letter ~~and the definitive agreements~~ relating to the Available Financing, including using reasonable best efforts to cause the Persons committing to fund the Available Financing to fund on the Closing Date the Available Financing required to consummate the transactions contemplated hereby and (E) to comply with its obligations under the Debt Commitment Letter relating to the Available Financing). Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and provide to the Company copies of all substantially final drafts and executed definitive agreements for the Available Financing, at each time promptly upon the Company’s request. (bc) ~~From~~ Without limiting the ~~date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX~~foregoing, Parent ~~and its Affiliates shall give~~ agrees to notify the Company ~~prompt notice~~ promptly if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any material ~~breach, repudiation or threatened material~~ breach or ~~repudiation~~ default by any party to the Debt Commitment Letter ~~of which Parent~~ or ~~its Affiliates becomes aware; provided~~ any Debt Financing Agreement, or (iii) a Lender indicates either in writing or orally that ~~none of Parent~~ it will not provide, or ~~Merger Sub shall be required~~ it refuses to ~~disclose or provide any such information~~provide, 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~~ on the ~~flex provisions (~~terms set forth therein. Without limiting Parent’s other obligations under this Section 6.13, if ~~any)) (other than as a result~~ the commitments with respect to all or any portion of the ~~Company’s breach~~ Debt Financing expires or is terminated or all or any portion of ~~any provision of this Agreement~~ the Debt Financing otherwise becomes unavailable or ~~failure to satisfy the conditions set forth in Section 8.1 and Annex 1)~~it becomes reasonably foreseeable that such events will occur, then Parent ~~and its Affiliates~~ shall (ix) promptly notify the Company ~~thereof~~ of such event and the reasons therefor, (iiy) 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~~ financing sources in an amount sufficient to ~~Parent than the Financing Conditions, not involving any conditions that would constitute an Adverse Effect on Financing (as defined below) as compared~~ pay all cash amounts required to ~~those set forth~~ be paid 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 Amounttransactions contemplated by this Agreement, as promptly as practicable following the occurrence of such event, and (~~iii~~z) ~~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~~ , together with the related fee letter (subject to ~~fees~~redaction solely of fee amounts, original issue discount amounts, pricing ~~terms, “market flex” provisions (if any)~~ caps and other ~~terms~~ economic provisions that are customarily redacted ~~(including any dates related thereto) may be redacted~~in connection with merger agreements of this type, ~~so long as~~ provided, that such ~~redaction does~~ redactions do not ~~extend~~ relate to any terms that would ~~reasonably be expected to reduce~~ adversely affect the conditionality, enforceability, availability, termination or aggregate principal amount of ~~such alternative~~ the Debt Financing (other than through the operation of original issue discount)) (which new financing commitment shall be considered the Debt Commitment Letter hereunder). Parent’s obligations under this Section 6.13(c) shall apply to ~~be funded on the Closing Date or impose additional conditions precedent to the funding of such alternative financing on the Closing Date~~any other Available Financing. (d) ~~From~~ Notwithstanding anything to the ~~date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX~~contrary contained herein, ~~without the prior written consent of the Company, Parent and its Affiliates shall~~ Parent’s obligations hereunder are not ~~amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter~~ subject to a condition regarding Parent’s or any ~~Debt Financing Document if such amendment, modification, supplement, restatement, assignment, substitution or replacement would (A) impose additional conditions precedent or expand upon~~ of its Affiliates’ obtaining funds to consummate 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 Merger 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 refinance of the Notes and the ~~Merger, (D~~Company Credit Agreement and all amounts payable pursuant to Sections 6.14(b) ~~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 (E6.14(c), 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 (NXP Semiconductors N.V.), Merger Agreement (Freescale Semiconductor, Ltd.)

Financing. Parent has delivered to the Company true, correct and complete copies of an executed commitment letter and fee letters from the financial institutions identified therein (athe “Debt Commitment Letter”) ~~From~~ to provide, subject to the terms and conditions therein, debt financing in the amounts set forth therein (being collectively referred to as the “Debt Financing”). As of the date hereof, the Debt Commitment Letter has not been amended or modified, no such amendment or modification is contemplated (other than amendments or modifications that are permitted by Section 5.10), and, as of the date hereof, the respective obligations and commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent has fully paid any and all commitment fees or other fees in connection with the Debt Commitment Letter that are payable on or prior to the date hereof. The Debt Commitment Letter is in full force and effect as of the date hereof. The Debt Commitment Letter constitutes the legal, valid and binding obligations of the parties thereto (other than the Financing Sources) and, to the knowledge of Parent, the Financing Sources, in each case, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and to general principles of equity. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach under the Debt Commitment Letter on the part of Parent or its Subsidiaries or, to the knowledge of Parent, any other parties thereto. As of the date of this Agreement ~~until~~ and subject to the ~~earlier~~ satisfaction of the ~~Effective Time or the termination of this Agreement~~ conditions set forth in ~~accordance with~~ Article IXVI, Parent ~~and its Affiliates shall use reasonable best efforts~~ does not have any reason to ~~take, or cause~~ believe that any of the 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~~ the Debt Financing ~~and to consummate~~ will not be satisfied or that the Debt Financing will not be available to Parent on ~~or prior to~~ the Closing Date. ~~Such actions shall include~~Subject to payment of customary fees, ~~but not be limited to, using reasonable best efforts to: (i) comply with and maintain in effect~~ the Debt Commitment Letter ~~(subject~~ contains all of the conditions precedent to ~~any amendment, supplement, replacement, substitution, termination~~ the obligations of the parties thereunder to make Debt Financing available to Parent on the terms therein. There are no side letters or other ~~modification~~ agreements, contracts or ~~waiver that~~ arrangements to which Parent or any of its Affiliates is ~~not prohibited by clause (d) below); (ii) satisfy, or obtain~~ a ~~waiver thereof, on a timely basis all Financing Conditions~~ party related to the ~~extent within~~ funding or investing, as applicable, of the ~~control~~ full amount of ~~Parent and its Affiliates; (iii) negotiate, execute and deliver~~ 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 than 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 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~~ customary engagement letter 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 non-disclosure agreements 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 do 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~~ conditionality 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 (Nexeo Solutions Holdings, LLC), Merger Agreement (WL Ross Holding Corp.)

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 IX~~Section ‎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 include~~Date 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 or~~waived, 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 ~~event~~event 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 ~~obtain~~require 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 ~~financing~~sources 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 ~~terms~~terms 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 Date~~Alternative 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 IX~~Section ‎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 ~~Company~~Company 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 facilities~~ii) 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 7.18~~Equity 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 include~~Financing, ~~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) ~~satisfy~~participation 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 Affiliates~~Financing; (~~iii~~vi) ~~negotiate~~using 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 hand~~Transferred 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 ~~Company~~Confidentiality Agreement; provided, ~~Parent and its Affiliates shall not amend~~however, ~~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 Financing~~Confidentiality 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 hand~~Parent, ~~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~~ 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 IX~~its 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 Letter (including any “flex” provisions) to the extent required, when taken together with cash or cash equivalents held by the 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 Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures and to pay cash in lieu of fractional shares in accordance with Section 2.2, including using reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) satisfy (or, if determined advisable by the Parent, obtain the ~~Debt~~ waiver of) on or prior to the Closing Date all conditions to funding contained in the Commitment Letter and such definitive agreements for the Financing to be entered into pursuant thereto, in each case, that are within the control of Parent, (iii) negotiate and enter into definitive agreements with respect to ~~consummate~~ the ~~Debt~~ Financing contemplated by the Commitment Letter on terms and conditions not materially less favorable to Parent, taken as a whole, than those described in the Commitment Letter (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; and (ivv) in the event that all conditions to funding contained in the ~~Offer Conditions~~ Commitment Letter have been satisfied or ~~waived or~~waived, ~~upon funding would be satisfied~~cause the applicable Financing Sources providing the Financing contemplated by the Commitment Letter to fund on the Closing Date the portion of the Financing contemplated by the Commitment Letter required to refinance in full all amounts outstanding under the Company Credit Agreement, ~~consummate~~ the ~~Debt~~ Company Receivables Financing Agreement and the Company Indentures and to pay cash in lieu of fractional shares in accordance with Section 2.2 (including by ~~instructing~~ enforcing 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~~against any breaching Financing Source). (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 contemplated by the Commitment Letter becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated by in the ~~Debt~~ Commitment Letter ~~(including the flex provisions (if any))~~ for any reason (other than as contemplated by the Commitment Letter, including as a result of entering into any Qualifying Bank Financing (as defined in the ~~Company’s breach~~ Commitment Letter) or issuing any debt securities) and such portion is necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of ~~any provision of this Agreement or failure~~ fractional shares in accordance with Section 2.2 and to ~~satisfy~~ pay the ~~conditions set forth in Section 8.1~~ fees and ~~Annex 1), then~~ expenses relating to the Merger and the Financing (A) 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, alternative financing for any such portion from alternative sources (the “Alternative Financing”) in an amount, when taken together with cash or cash equivalents held by the Parent and ~~(iii) use reasonable best efforts to obtain, and when obtained, provide~~ the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, sufficient to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with ~~a true~~ Section 2.2 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~~ to pay the fees and expenses relating to ~~fees, pricing terms, “market flex” provisions~~ the Merger and the Financing and which (~~if any~~1) ~~and other terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction~~ does not ~~extend~~ involve terms and conditions that, taken as a whole, are materially less beneficial to ~~any terms that~~ Parent than those contained in the Commitment Letter, or (2) would not reasonably be expected to ~~reduce~~ prevent, materially impede or materially delay the ~~aggregate principal amount~~ consummation of ~~such alternative financing~~ the transactions contemplated by this Agreement. To the extent requested by the Company from time to ~~be funded~~ time, Parent shall keep the Company informed on a reasonably current basis of the ~~Closing Date~~ status of its efforts to arrange the Financing. Without limiting the generality of the foregoing, Parent shall promptly notify the Company in writing (x) if there exists any material breach, material default, repudiation, cancellation or ~~impose additional conditions precedent~~ termination by any party to the ~~funding~~ Commitment Letter (or any event or circumstance that, with or without notice, lapse of ~~such alternative financing on the Closing Date.~~ time or both, could reasonably be expected to give rise to any material breach, material default, repudiation, cancellation or termination) of which Parent obtains knowledge, (dy) ~~From the date of this Agreement until the earlier~~ of the ~~Effective Time~~ receipt by Parent or any of its Subsidiaries of any written notice or other written communication from any Financing Source party to the Commitment Letter asserting any actual material breach, material default, repudiation, cancellation or termination by any party to the Commitment Letter or (z) if for any reason Parent or any of ~~this Agreement~~ its Subsidiaries believes in ~~accordance~~ good faith that there is (or there is reasonably likely to be) a material dispute or disagreement between or among any parties to the Commitment Letter or any definitive document related to the Financing with ~~Article IX,~~ respect to the obligations to fund the Financing contemplated by the Commitment Letter. None of Parent nor any of its Subsidiaries shall (without the prior written consent of the Company, ~~Parent and its Affiliates shall~~ such consent not ~~amend~~to be unreasonably withheld, ~~modify~~delayed or conditioned) consent or agree to any amendment, ~~supplement~~replacement, ~~restate~~supplement or modification to, ~~assign~~or any waiver of any provision under, ~~substitute or replace~~ the ~~Debt~~ Commitment Letter or ~~any Debt~~ the definitive agreements relating to the Financing ~~Document~~ if such amendment, ~~modification~~replacement, supplement, ~~restatement, assignment, substitution~~ modification or ~~replacement would~~ waiver (A1) ~~impose additional conditions precedent or expand upon~~ decreases the ~~conditions precedent to the funding of the Debt Financing, (B) reduce the~~ aggregate 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, when taken together with cash or cash equivalents held by the ~~Required Amount (after taking into account any cash on hand, available lines of credit (including under Borrower’s existing revolving credit~~ 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)~~ 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 Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing, (2) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Financing, (3) could reasonably be expected to prevent, materially impede or materially ~~impair,~~ delay ~~or prevent~~ the consummation of the transactions contemplated by this Agreement, ~~including the Offer and the Merger,~~ or (D4) materially and adversely ~~affect Parent’s ability to consummate the transactions contemplated by this Agreement, including the Offer and the Merger or (E) materially adversely impact~~ impacts 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~~ Letter; provided, however, that, for the ~~definitive agreements with respect thereto (clauses (A) through (E)~~avoidance of doubt, ~~each an “Adverse Effect on Financing”); provided that~~ Parent ~~may, without the prior written consent of the Company,~~ may amend, ~~modify~~replace, ~~supplement, restate, assign, substitute or replace~~ supplement and/or modify the ~~Debt~~ Commitment ~~Letter, including (1)~~ Letter 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~~ Commitment Letter as ~~in effect on~~ of the date ~~hereof and, in connection therewith, amend~~ of this Agreement or increase the ~~economic and other arrangements with respect to such appointments, (2) modify pricing, (3) terminate or reduce any~~ amount of commitments under the ~~Debt Financing in order to obtain alternative sources of debt financing in lieu of all~~ Commitment Letter. Upon any amendment, supplement or ~~a portion~~ 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 CompanyCommitment Letter, Parent shall ~~keep~~ provide a copy thereof to the Company ~~informed in reasonable detail of the status of Parent’s efforts to arrange the Debt Financing. Any alternative~~(with only fee amounts and other economic terms, ~~substitute or replacement debt financing obtained by Parent in accordance with this paragraph~~ and the ~~previous paragraph is~~ rates and amounts included in the “~~Alternative Financing.~~flex” ~~For purposes~~ provisions, redacted, none 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 which redacted 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.would adversely affect the

Appears in 2 contracts

Sources: Merger Agreement (Fiserv Inc), Merger Agreement (First Data 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 ~~take~~obtain 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 amendment~~Financing Commitments, ~~supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below);~~ (ii) ~~satisfy~~to satisfy all conditions applicable to Parent, or ~~obtain a waiver thereof~~Merger Sub in such definitive agreements, ~~on a timely basis all Financing Conditions to the extent within the control of Parent and its Affiliates;~~ (iii) ~~negotiate~~to 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 or~~modification to be made to, ~~upon funding would be satisfied~~or 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 arrangers~~its 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 appointments~~Financing, (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 case~~the 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 applicable~~representation 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 financing~~customary confidentiality protections).

Appears in 2 contracts

Sources: Merger Agreement (Goldman Sachs Group Inc/), Merger Agreement (Waste Industries Usa Inc)

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 ~~advisable~~advisable 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 include~~Financing), ~~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 amendment~~Parent’s right to replace, restate, supplement, ~~replacement~~modify, ~~substitution~~assign, ~~termination~~ substitute or ~~other modification or waiver that is not prohibited by clause (d) below~~amend 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 or~~cause 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 ~~Letter~~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) 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 1~~Company), ~~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, that~~amount 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 any~~applicable 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 IX~~would 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 financing~~transactions contemplated hereby.

Appears in 2 contracts

Sources: Merger Agreement (American Renal Associates Holdings, Inc.), Merger Agreement (American Renal Associates Holdings, Inc.)

Financing. (a) ~~From the date of~~ Buyer expressly acknowledges and agrees that Buyer’s obligations under this Agreement ~~until the earlier~~ are not conditioned in any manner whatsoever upon Buyer obtaining any financing. Buyer shall use (and shall cause each of ~~the Effective Time or the termination of this Agreement in accordance with Article IX, Parent and~~ its Affiliates ~~shall use~~ 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~~ necessary, advisable or ~~advisable,~~ desirable 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~~ described in the Debt Commitment Letter (including any “market flex” provisions set forth in the Fee Letter), including using (and causing each of its Affiliates to use) its reasonable best efforts to (i) comply with its obligations under the Debt Commitment Letter and satisfy on a timely basis (or obtain a waiver of) all terms, conditions, representations and warranties applicable to Buyer and its Affiliates set forth in the Debt Commitment Letter; (ii) maintain in effect the Debt Commitment Letter on the terms and conditions contained therein (including, to the extent the same are exercised, any “market flex” provisions set forth in the Fee Letter) until the transactions contemplated by this Agreement are consummated (it being understood that the Debt Commitment Letter may be replaced or amended as provided below); (iii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained in the Debt Commitment Letter (including, to the extent the same are exercised, any “market flex” provisions set forth in the Fee Letter); (iv) enforce its rights under the Debt Commitment Letter in the event of a breach by the Debt Financing Sources or other parties thereto to the extent such breach results in a failure or material delay to consummate the transactions under this Agreement; (v) cause its senior management as well as appropriate Representatives of Buyer and its Affiliates, if ~~any~~applicable, to cooperate with the marketing and/or syndications efforts of the Debt Financing Sources, (vi) ~~related thereto~~timely prepare the necessary offering circulars, private placement memoranda, or other offering documents or Marketing Materials with respect to the Debt Financing; (vii) commence the marketing and/or syndication activities contemplated by the Debt Commitment Letter as promptly as practicable; and (viii) subject to clause (iv) of this sentence, satisfy or cause to be waived on ~~such other~~ a timely basis all conditions to funding the Debt Financing that are applicable to Buyer in the Debt Commitment Letter on or prior to Closing; provided, however, that if funds in the amounts and on the terms ~~acceptable to Parent that would not constitute an Adverse Effect on Financing as compared to those~~ set forth in the Debt Commitment Letter ~~delivered~~ become unavailable to ~~the Company~~ Buyer on the ~~date hereof;~~ terms and conditions set forth therein, Buyer shall (x) notify Seller in writing of such event, (y) use reasonable best efforts to obtain Alternative Financing as promptly as possible in amounts and otherwise on terms and conditions in the aggregate, not materially less favorable, taken as a whole, to Buyer than as set forth in the Debt Commitment Letter (taking into account any “market flex” provisions related thereto), and (ivz) use reasonable best efforts to obtain a new debt commitment letter that provides for such Alternative Financing and promptly deliver a true, correct and complete copy thereof and any fee letter related thereto (provided, that provisions in ~~the event~~ such fee letter may be redacted in a customary manner (i.e., redacted as to pricing, economic market flex and other provisions; provided that the ~~Offer Conditions have been satisfied~~ redacted pricing, market flex and other economic provisions set forth therein shall not affect availability or ~~waived or, upon funding would be satisfied, consummate~~ conditionality of the Debt Financing at Closing)) to Seller; provided further, that if Buyer proceeds with Alternative Financing, it shall be subject to the same obligations as set forth in this Section 5.12 with respect to the Debt Financing. (~~including~~ b) Buyer shall keep Seller apprised of all material developments relating to the Debt Financing. Buyer shall promptly (and in any event within two Business Days) notify Seller of (i) the expiration or termination of the Debt Commitment Letter, (ii) any refusal by ~~instructing~~ the Debt Financing Sources to ~~fund~~ provide, or any stated intent by the Debt Financing ~~in accordance with~~ Sources to refuse to provide, the full Debt Financing contemplated by the Debt Commitment Letter, ~~and enforcing Parent’s rights under~~ (iii) any breach or default (or any change, circumstance, fact occurrence or event that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any breach or default) by Buyer or, to the knowledge of the Buyer, any other party to the Debt Commitment Letter ~~and the~~ or definitive ~~agreements relating~~ document that may cause Buyer to no longer be able to obtain all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms described therein (and that Buyer will not be able to obtain acceptable Alternative Financing). , (biv) ~~From the date~~ any change, circumstance, fact occurrence or event of ~~this Agreement until the earlier~~ which Buyer becomes aware that, with or without notice, lapse of time or both, would reasonably be expected to cause Buyer to no longer be able to obtain all or any portion of the ~~Effective Time~~ Debt Financing contemplated by the Debt Commitment Letter on the terms described therein (and that Buyer will not be able to obtain acceptable Alternative Financing), or ~~the termination of this Agreement in accordance with Article IX, Parent and its Affiliates shall give the Company prompt notice~~ (v) receipt of any ~~material~~ written notice or other written communication from any Person with respect to any (A) actual or potential breach, ~~repudiation or threatened material breach~~ default, termination or repudiation by any party to the Debt Commitment Letter ~~of which Parent~~ or ~~its Affiliates becomes aware; provided~~ any definitive document related to the Debt Financing or (B) material dispute or disagreement between or among any parties to the Debt Commitment Letter or any definitive document that ~~none of Parent or Merger Sub shall~~ would cause Buyer to no longer 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 ~~becomes unavailable on the terms and conditions~~ contemplated by the Debt Commitment Letter on the terms described therein (~~including~~ and that Buyer will not be able to obtain acceptable Alternative Financing). (c) Buyer shall not replace, amend or waive the ~~flex provisions (~~Debt Commitment Letter or the Fee Letter without Seller’s prior written consent if ~~any)) (other than as a result of the Company’s breach of any provision of this Agreement~~ such replacement, amendment or ~~failure to satisfy the conditions set forth in Section 8.1 and Annex 1), then Parent and its Affiliates shall~~ waiver (i) ~~promptly notify~~ reduces the ~~Company thereof~~ aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount thereof) unless Buyer delivers to Seller evidence in form and substance reasonably acceptable to Seller that Buyer shall otherwise have available cash sufficient to consummate the ~~reasons therefor~~Closing, (ii) ~~use reasonable best efforts~~ imposes new or additional conditions, or otherwise expands any of the conditions, to ~~obtain alternative financing from~~ the ~~same or alternative~~ receipt of 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 or (iii) ~~use reasonable best efforts to obtain~~effects any other amendment, 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 modification or waiver 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~~ impede the consummation of the transactions contemplated by this Agreement. Buyer shall provide to Seller copies of any commitment letter associated with a replacement Debt Financing or Alternative Financing as well as any amendment or waiver of any debt commitment letter (including the Debt Commitment Letter) that is permitted hereunder. (d) From the date hereof until the Closing Date, Seller shall, and shall cause the Company Group members (and its and their respective Representatives) to, at Buyer’s sole cost and expense, provide such cooperation reasonably requested by Buyer or any of its Affiliates or Representatives in connection with the arrangement of Debt Financing as required by the terms of the Debt Commitment Letter, including Commercially Reasonable Efforts to: (i) furnish Buyer with documentation and other information of Seller and the Company Group members as required under applicable “know your customer” and anti-money laundering rules and regulations, including the ~~Offer~~ Patriot Act, in each case, that has been reasonably requested in writing by Buyer not less than 5 Business Days prior to the Closing Date, (ii) facilitating instruments of discharge with respect to the Indebtedness of the Company Group required to be released prior to the Closing Date in order to transfer the Interests to Buyer free and clear of all Liens (other than Liens imposed by state and federal securities laws), pursuant to Section 2.01 on the Closing Date, (iii) facilitating the pledging of collateral to the extent required by the terms of the Debt Commitment Letter and reasonably requested by Buyer (in each case, subject to and only effective upon the occurrence of the Closing) and assist with the production of factual information required in connection with the preparation of any credit agreement, pledge and security documents, perfection certificates, mortgages, deeds of trust, hedging agreements, legal opinions reasonably requested (including on behalf of the Debt Financing Sources), legal opinion support certificates or other definitive financing documents or other documents related to the Debt Financing (including schedules, insurance certificates, and evidence of corporate authority) as may be reasonably requested by the Buyer, (iv) participation by senior management of the Seller and the ~~Merger~~Company Group in, and assistance with, (1) the preparation of rating agency presentations, (2) meetings with rating agencies, roadshows, due diligence sessions, drafting sessions and meetings with prospective lenders and debt investors and (3) the preparation of confidential information memoranda, investor presentations, lender presentations, roadshow presentations and similar customary documents as may be reasonably requested by Buyer or any Lender, in each case, with respect to information relating to the Seller and the Company Group in connection with customary marketing efforts of Buyer for all or any portion of the Debt Financing (collectively, the “Marketing Material”), (v) provide reasonable and customary authorization letters, confirmations and undertakings to the Debt Financing Sources authorizing the distribution of information relating to the Seller and the Company Group to prospective lenders (including with respect to the presence or absence of material non-public information and accuracy of the information contained therein) and subject to customary confidentiality provisions, (vi) cause the Company’s auditors to deliver customary consents and comfort letters (including “negative assurance” and “change period” comfort) with respect to the financial information relating to the Company and its subsidiaries as reasonably requested by the Debt Financing Sources and to attend accounting due diligence sessions and to provide consents for the use of their reports in any materials or disclosures relating to the Debt Financing, (vii) provide reasonably requested information relating to the compliance by the Seller and the Company Group with all applicable government laws and regulations, (viii) furnish Buyer with the financial statements and other information described in Section 5.14 and (ix) allow the usual and customary use of the logos of the Seller and the Company Group in connection with any debt financing (provided such logos shall be used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Seller’s or any Company Group member’s reputation or goodwill), subject to Seller’s prior approval of such materials; provided, however, that nothing herein shall require Seller, the Company Group members or any of their respective Representatives or Affiliates to take any action that would be effective prior to the Closing Date or to the extent it would, in Seller’s reasonable judgment, interfere unreasonably with the business or operations of Seller or its Affiliates (including the Company Group members). (e) Neither Seller nor any of its Affiliates (including the Company Group members) shall be required to pay any commitment or other similar fee or make any other payment or incur any other liability or provide or agree to provide any indemnity in connection with the Debt Financing or any of the foregoing that would be effective prior to the Closing Date or would be treated as a Company Transaction Expense. None of Seller, its Affiliates or their respective Representatives shall be required to (i) execute or enter into or perform any Contract contemplated by the Debt Commitment Letter that is not contingent upon the Closing Date or that would be effective prior to the Closing Date (other than as contemplated under Section 5.12(d)), (ii) adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained or take any corporate actions prior to the Closing Date to permit the consummation of the Debt Financing, (iii) provide in connection with the Debt Financing any information the disclosure of which is prohibited or restricted under Applicable Law or is legally privileged, (iv) take any action which would result in either Seller, its Affiliates or any of their respective Representatives incurring any liability with respect to the matters relating to the Debt Financing or cause any director, officer or employee of Seller, its Affiliates or their respective Representatives to incur any personal liability in connection with the Debt Financing, or (v) other than with respect to current or historical financial information required to be furnished pursuant to Section 5.12(d), provide (A) pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financial information, (B) any description of all or any component of the Debt Financing (including any such description to be included in any liquidity or capital resources disclosure or any “description of notes”), (C) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing, or (D) ~~materially adversely affect Parent’s ability~~ any solvency certificate or similar certification or representation (which items (A) through (D) shall be the sole responsibility of Buyer). None of Seller, the Company Group members, or any of their respective Representatives or Affiliates shall be required to ~~consummate~~ make any representation, warranties or certifications in connection with the Debt Financing as to which, after the use of Commercially Reasonable Efforts to cause such representation, warranty or certification to be true, such Person has in its good faith determined that such representation, warranty or certification is not true. Seller shall be given a reasonable opportunity to review and comment on any financing documents and review any materials that are to be presented during any meetings conducted in connection with the Debt Financing, and Buyer shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Seller. (f) Buyer acknowledges and agrees that Seller will not, except as set forth in this Agreement, have any liability to any Person under or in connection with, the arrangement of the Debt Financing that Buyer may raise in connection with the transactions contemplated by this Agreement. Buyer shall promptly, upon request by Seller (including ~~the Offer~~ following a valid termination of this Agreement in accordance with Article 10), reimburse Seller for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees) incurred by Seller and the ~~Merger~~ Company Group members in connection with the cooperation of Seller and its Affiliates contemplated by this Section 5.12 and shall indemnify and hold harmless Seller, the Company Group members, and their respective Representatives from and against any and all Damages suffered or ~~(E) materially adversely impact the ability of Parent or~~ incurred by any of ~~its Affiliates’ to enforce their respective rights against the Debt Financing Sources or~~ them of 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, type 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 arrangement of the Debt Financing, ~~in each case, so long as~~ except to the extent 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 Damages arise from 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~~ gross negligence or Fraud by Seller, the ~~extent permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the provisions~~ Company Group members of ~~this Agreement to the same extent as the Debt Financing.~~ their respective Representatives. (g) Notwithstanding anything to the contrary ~~contained~~ in this Agreement, the condition set forth in ~~no event shall Parent or its Affiliates be required~~ Section 8.02(b), as it applies 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 Seller’s obligations under this ~~Agreement~~Section 5.12, ~~including their~~ shall be deemed satisfied unless Seller willfully fails to perform its obligations under this Section 5.12 and such willful failure to ~~consummate~~ perform has been the ~~Offer and~~ primary cause of the ~~Merger, are~~ Debt Financing not ~~subject to, or conditioned on, Parent’s or Merger Sub’s receipt of financing~~being obtained.

Appears in 2 contracts

Sources: Membership Interest Purchase Agreement (Fortress Transportation & Infrastructure Investors LLC), Membership Interest Purchase Agreement (United States Steel Corp)

Financing. (a) ~~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 reasonably necessary to consummate and obtain the Financing on substantially the terms and conditions described in the Commitment Letter, ~~and use~~ as adjusted by the Agreed Marketing Terms, if any, including 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 and, if entered into prior to the Closing, the definitive documentation with respect to the Financing contemplated by the Commitment Letter (~~subject to any amendment~~including “flex” provisions contained therein) (the “Definitive Financing Agreements”), ~~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 execute Definitive Financing Agreements on ~~a timely basis all Financing Conditions to~~ terms and conditions contemplated by 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 (in connection therewith), as adjusted by the Agreed Marketing Terms, if any, and, upon execution thereof, deliver a copy thereof to the Company, (iii) ~~related thereto) or~~ satisfy on ~~such other terms acceptable~~ a timely basis all conditions applicable to Parent and its Subsidiaries in the Commitment Letter and Definitive Financing Agreements that are within its control and comply with its obligations thereunder, and not take any action that would ~~not constitute an Adverse Effect on Financing as compared to those set forth in~~ prevent the ~~Debt Commitment Letter delivered to~~ availability of the ~~Company on the date hereof; and~~ Financing, (iv) seek to enforce its rights under the Commitment Letter and Definitive Financing Agreements in the event of a breach or failure to fund by the financing sources that materially impedes or materially delays Closing, including by seeking specific performance against, the ~~Offer Conditions~~ parties thereto (including the Commitment Party under the Commitment Letter). In the event that all conditions to the Financing have been ~~satisfied~~ satisfied, or ~~waived or,~~ upon funding ~~would~~ will be satisfied, ~~consummate~~ Parent shall use its reasonable best efforts to cause the ~~Debt~~ lenders and the other Persons providing such Financing to fund on the Closing Date (including by ~~instructing the Debt Financing Sources~~ seeking specific performance to cause such lenders and other Persons to fund such Financing) the ~~Debt~~ portion of the Financing ~~in accordance with~~ required to consummate the ~~Debt Commitment Letter~~Merger and the transactions contemplated by this Agreement. Parent shall have the right from time to time to amend, ~~and enforcing Parent’s~~ replace, supplement or otherwise modify, or waive any of its rights ~~under~~ 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~~Definitive Financing Agreements, ~~Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation~~ and/or substitute other debt 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 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 or Definitive Financing Agreements that amends the Financing and/or substitution of all or any portion of the Financing shall not (A) expand upon or amend in any way that is adverse to the Company the conditions precedent to the Financing as set forth in the Commitment Letter or (B) be reasonably expected to prevent or materially impede or materially delay the availability of the Financing and/or the consummation of the Merger and the transactions contemplated by this Agreement. Parent shall be permitted to reduce the amount of Financing under the Commitment Letter or Definitive Financing Agreements in its reasonable discretion, provided, that Parent shall not reduce the Financing to an amount committed below the amount that is required, together with the financial resources of Parent and Merger Subsidiary, including cash on hand and marketable securities of Parent, the Company and their respective Subsidiaries, to consummate the Merger and the other transactions contemplated by this Agreement (including the payment of any Required Amounts), and provided, further, that such reduction shall not (A) expand upon or amend in any way that is adverse to the Company the conditions precedent to the Financing as set forth in the Commitment Letter or (B) be reasonably expected to prevent or materially impede or materially delay the availability of such reduced Financing and/or the consummation of the Merger and the transactions contemplated by this Agreement. If any portion of the Financing becomes unavailable or Parent becomes aware of any event or circumstance that makes any portion of the Financing unavailable, in each case, on the terms and conditions (including any “flex” provisions in connection therewith) contemplated in the Commitment Letter, as adjusted by the Agreed Marketing Terms, if any, and such portion is reasonably required to consummate the Merger and the other transactions contemplated by ~~the Debt Commitment Letter~~ this Agreement (including the ~~flex provisions (if any)) (other than as a result of the Company’s breach~~ payment of any ~~provision of this Agreement or failure to satisfy the conditions set forth in Section 8.1 and Annex 1~~Required Amounts), ~~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 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~~event alternative financing from the same and/or alternative financing sources in an amount sufficient to consummate the Merger and the other transactions contemplated by this Agreement (including the payment of any Required Amounts), upon terms and conditions (~~iii~~including any “flex” provisions) ~~use reasonable best efforts~~ not materially less favorable, in the aggregate, to ~~obtain~~Parent than those in the Commitment Letter, ~~and when~~ as adjusted by the Agreed Marketing Terms, if any, and, if obtained, will 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 documentation with respect to such ~~appointments~~alternative financing. Parent shall give the Company prompt oral and written notice (but in any event not later than 48 hours) after Parent becoming aware (i) of the occurrence of any material breach by any party to the Commitment Letter or Definitive Financing Agreements or of any condition not likely to be satisfied, (2ii) ~~modify pricing~~of any termination or waiver, amendment or other modification of the Commitment Letter, (3iii) ~~terminate~~ that any of the Financing Parties no longer intends to provide the Financing or ~~reduce~~ (iv) that 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~~ is not available to consummate 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~~Merger. ~~Upon request of the Company,~~ Parent shall keep the Company informed ~~in reasonable detail~~ on a reasonably current basis of the status of its efforts to arrange, obtain and/or consummate the Financing and shall provide copies of the principal documents related to the Financing (excluding fee letters and engagement letters, except to the extent that such documents contain any conditions to funding or “flex” provisions (excluding provisions related solely to fees and economic terms (other than covenants) agreed to by the parties)) on a periodic basis of no less frequently than once a month and as may otherwise be reasonably requested by the Company. In the event that Parent commences an action to seek specific performance to enforce its rights under the Commitment Letter or the Definitive Financing Agreements and/or cause the financing sources to fund the Financing (any such action, a “Financing Action”), Parent shall (x) keep the Company reasonably informed of the status of the Financing Action and (y) at the reasonable request of the Company, make Parent’s ~~efforts~~ employees and legal advisors reasonably available to ~~arrange~~ discuss the ~~Debt Financing~~status of, and material developments with respect to, the Financing Action (subject in all cases to preserving all legal privileges). ~~Any alternative~~For the avoidance of doubt, ~~substitute or replacement debt financing obtained by Parent in accordance with this paragraph and~~ the ~~previous paragraph is~~ syndication of 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~~ shall not 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 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 violate Parent’s 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 (RiskMetrics Group Inc), Merger Agreement (MSCI 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 1~~applicable “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 (A~~D) ~~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 ~~may~~nor 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, modify~~extent 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 appointments~~Financing, (2) ~~modify pricing~~introduce 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 Agreement~~will deliver to the Company copies of any such amendment, ~~including their obligations to consummate the Offer and the Merger~~modification, ~~are not subject to,~~ replacement or ~~conditioned on, Parent’s or Merger Sub’s receipt of financing~~waiver promptly upon its execution thereof.

Appears in 2 contracts

Sources: Merger Agreement (American Greetings Corp), Merger Agreement (American Greetings Corp)

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 IX~~its 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 satisfied~~waived, 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 of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX~~Parent, ~~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 include~~terms 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 or~~waiver of, ~~upon funding would be satisfied~~on 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 IX~~Closing. 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 obligation~~written notice or other written communication from the Debt Financing Sources with respect to any Debt Financing Sources’ failure or anticipated failure to fund its commitments under the Debt Commitment Letter or definitive agreements in connection therewith. Parent, Merger Sub and Merger LLC shall not release or consent to the termination of the commitments and obligations of the lenders under the Debt Commitment Letter other than in accordance with the terms thereof, nor shall Parent, Merger Sub and Merger LLC terminate the Debt Commitment Letter. (c) 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 Financing~~Company, 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 any~~10) Business Days prior to the Closing Date; provided, however, that, no obligation of any of the Acquired Companies under any agreement, certificate, document or 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 on~~take 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.)

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 IX~~Agreement, ~~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 to~~all 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 Conditions~~Companies, ~~not involving any conditions that would constitute an Adverse Effect on Financing~~ in the aggregate, (~~as defined below~~iii) ~~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 hand~~time 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 IX~~each Commitment Letter, and (2) except as contemplated by the Commitment Letters, not permit, without the prior written consent of ~~the Company~~Sellers, ~~Parent and its Affiliates shall not amend~~any 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, (B~~x) 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 Conditions~~conditions 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 ~~may~~to 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~~ 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 IX~~Section 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 include~~terms 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 amendment~~Letters 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 satisfied~~Facility 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 ~~therefor~~therefor (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 ~~event~~event (the “Alternative Financing”). The Buyers shall deliver to the Sellers copies of all agreements evidencing the Alternative Financing. The Buyers shall give the Sellers prompt written notice of (x) any material breach by any party to the Commitment Letters and the Facility Documents of which the Buyers becomes aware or any termination of the Commitment Letters and the Facility Documents, or (y) any material dispute or disagreement between or among the Buyers, on the one hand, and ~~(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 IX~~Buyers, ~~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 Financing~~terms and conditions, in ~~each case~~the 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 Financing~~the 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 Financing~~all 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 financing~~hereunder.

Appears in 2 contracts

Sources: Share Purchase Agreement, Share Purchase Agreement (Mallinckrodt PLC)

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 IX~~Agreement, ~~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 ~~advisable~~advisable 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 include~~Date 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 or~~Closing, ~~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 Letter~~Payoff 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 Borrower~~are 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 may~~Constellation 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 ~~Company~~existence 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, ~~amend~~amendment, ~~modify~~modification, ~~supplement~~waiver or replacement, ~~restate~~including any Replacement Committed Debt Financing. Without limiting the foregoing, ~~assign~~Constellation 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 case~~connection 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 Financing~~a 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 ~~Company~~prior 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 alternative~~Without 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 ~~Agreement~~Section 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 7.18~~clause (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 ~~Agreement~~Section 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 on~~execute 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 ~~financing~~the 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 include~~terms 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) ~~satisfy~~substantially 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 hereof~~Letters; 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 facilities~~written 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 Amount~~Parent 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 (~~iii~~B) ~~use reasonable best efforts~~ obtain one or more new financing commitment letters with respect to ~~obtain~~such 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 financing~~Alternate 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 ~~fees~~the Financing. Without limiting the generality of the foregoing, ~~pricing terms~~Parent 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 redacted~~event 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 IX~~any 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, ~~restatement~~modification or waiver (w) imposes new or additional conditions, ~~assignment~~or 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 ~~Financing~~Financing 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 Financing~~transactions 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 on~~any other financing arrangements, Parent’s or and Merger Sub’s ~~receipt~~ obtaining of ~~financing~~the 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)

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 IX~~Holdco, 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 include~~terms 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 amendment~~Financing 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 Date~~Company. (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 ~~amendment~~amendments, ~~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, (B~~i) 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~~or (ii) impose new or additional conditions that would reasonably be expected to prevent or materially delay the ability of Holdco, Parent or Merger Sub to consummate the Merger; provided, that notwithstanding any other provision of this Agreement, Holdco, Parent and Merger Sub shall be entitled from time to time to (x) amend, restate, supplement, replace, substitute or otherwise modify, or waive any of its rights under, the Financing Commitments and/or replace or substitute other debt or equity financing for all or any portion of the Financing from the same and/or alternative financing sources, subject to clauses (i) and (ii) above, and (y) amend, restate, supplement, replace, substitute or otherwise modify the Debt Commitment Letter for the purposes of adding agents, co-agents, lenders, managers, co-managers, arrangers, bookrunners or other Persons that have not executed the Debt Commitment Letter as of the date hereof so long as such ~~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 ~~7.18~~6.14(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 financing~~proceeding 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~~ 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 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~~ necessary, proper or ~~advisable~~advisable to arrange, ~~to arrange~~ and ~~obtain~~ close concurrently with the Closing, debt financing on terms and conditions described in the Debt Commitment Letters and/or any Alternative Financing ~~and to consummate the Debt Financing on or prior to the Closing Date. Such actions shall include~~(as defined below) (including obtaining rating agency approvals, ~~but not be limited to, using reasonable best efforts to: (i) comply with and maintain~~ maintaining in effect the Debt Commitment ~~Letter (subject to any amendment~~Letters, ~~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 Financing Documents~~ Merger Sub to obtaining 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 financing contemplated by the Debt Commitment ~~Letter (including~~ Letters, negotiating and entering into definitive agreements with respect to the Debt Commitment Letters on terms and conditions contained therein or with respect to any Alternative Financing, satisfying all conditions applicable to Parent and Merger Sub in such definitive agreements that are within their respective control and, if necessary, borrowing pursuant to the Debt Commitment Letters in the event any “~~market~~ flex” provisions ~~(if any) related thereto) or~~ are exercised). Parent shall keep the Company Board informed on ~~such other~~ a reasonably current basis in reasonable detail of the status of its efforts to comply with the terms ~~acceptable to Parent that would not constitute an Adverse Effect on Financing as compared to those set forth in~~ of, and satisfy the conditions contemplated by, 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 Letters in accordance with this Section 6.12 and shall not, and shall not permit Merger Sub to, agree or permit any amendment, supplement or other modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment ~~Letter~~Letters without obtaining the prior written consent of the Company Board if such amendment, ~~and enforcing Parent’s rights under the Debt Commitment Letter and the definitive agreements relating~~ supplement or other modification could reasonably be expected to impair, delay or prevent consummation of 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 Board 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~~ Letters, 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~~ Commitment Letters or any other circumstance, event or condition that would reasonably be likely to prevent, delay or impede the ~~terms and conditions~~ consummation of the financing contemplated by the Debt Commitment ~~Letter (including~~ Letters, to the ~~flex provisions (if any)) (other than as a result~~ extent it becomes aware of ~~the Company’s breach~~ such breach, termination, circumstance, event or condition. Parent shall not, and shall not permit 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, 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 IXto, without the prior written consent of the Company, ~~Parent and its Affiliates shall not amend~~take or fail to take any action or enter into any transaction, ~~modify~~including any merger, ~~supplement~~acquisition, ~~restate~~joint venture, ~~assign~~disposition, ~~substitute~~ contract or ~~replace~~ debt or equity financing, that could reasonably be expected to materially breach or make materially untrue any representation or warranty contained in the Debt Commitment ~~Letter~~ Letters or ~~any Debt Financing Document if such amendment~~otherwise impair, 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~~ prevent consummation of the Debt Financing (or, if applicable, of any Alternative Financing). In the event that all or ~~the satisfaction~~ any portion of the ~~Financing Conditions)~~ financing contemplated by the Debt Commitment Letters becomes unavailable on the ~~Closing Date~~ terms and conditions set forth in the Debt Commitment Letters, Parent shall use its reasonable best efforts to arrange, or ~~materially impair, delay or prevent the consummation of~~ if Parent is able to arrange debt financing in amounts sufficient to fund the transactions contemplated ~~by this Agreement~~hereby on terms and conditions more favorable to Parent than those contained in the Debt Commitment Letters, ~~including~~ Parent may arrange, in each case as promptly as practicable following the ~~Offer~~ occurrence of such event and after giving the ~~Merger~~Company prior written notice, ~~(D) materially adversely affect Parent’s ability~~ alternative financing from alternative sources in an amount sufficient to consummate the transactions contemplated by this ~~Agreement, including the Offer and the Merger or (E) materially adversely impact the ability of~~ Agreement on terms that are no less beneficial to Parent or Merger Sub (including with respect to conditionality) and on terms that would not reasonably be expected to prevent, delay or impede the consummation of any ~~of its Affiliates’ to enforce their respective rights against the Debt Financing Sources or any of the other parties to~~ remaining financing contemplated by the Debt Commitment Letters or the ~~definitive agreements with respect thereto~~ transactions contemplated by this Agreement (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~~ the avoidance of ~~this Agreement~~doubt, ~~references to “Debt Financing” shall include~~ if 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 provided for by the Debt Commitment ~~Letter as in effect on the date hereof (including the market flex provisions (if any))~~ Letters has not been 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)). cannot be obtained, Parent and Merger Sub ~~expressly acknowledge~~ shall continue to be obligated to consummate the Merger on the terms contemplated by this Agreement and ~~agree~~ subject only to the satisfaction or waiver of the conditions set forth in Sections 7.1 and 7.2 of this Agreement (other than those conditions that by their nature will not be satisfied until the Closing) and to Parent’s rights under Section 8.1, regardless of whether Parent and Merger Sub have complied with all of their other obligations under this Agreement (including 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~~Section 6.12).

Appears in 2 contracts

Sources: Agreement and Plan of Merger (LKQ Corp), Merger Agreement (Keystone Automotive Industries 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 Debtor shall, ~~Parent~~ and shall cause its ~~Affiliates shall~~ Subsidiaries to, use reasonable best efforts to ~~take, or cause~~ provide and direct its and their respective Representatives to ~~be taken, all actions, and~~ use their respective reasonable best efforts to doprovide all cooperation reasonably requested by Parent in connection with the arrangement, syndication and consummation of any debt financing by Parent or ~~cause~~ its Subsidiaries and the Debtor or any of its Subsidiaries, any equity financing of Parent or any minority investment in the Debtor or any of its Subsidiaries (not to ~~be done~~exceed ten percent (10%) of the fully-diluted equity of the Debtor or such Subsidiary) including (i) the refinancing of the indebtedness under the Centerbridge Facility, ~~all things reasonably necessary~~ whether at the Debtor, Parent or ~~advisable~~any of their Subsidiaries (such financing, the “Manorcare Financing”), (ii) the refinancing of the indebtedness under the First Lien Credit and Guaranty Agreement, dated as of October 31, 2016, by and among QCP SNF West REIT, LLC, QCP SNF Central REIT, LLC, QCP SNF East REIT, LLC, QCP AL REIT, LLC, QCP Holdco REIT, LLC, Parent, certain Subsidiaries of Parent from time to ~~arrange~~ time party to the credit agreement as guarantors, the lenders party thereto and ~~obtain~~ Barclays Bank PLC, as Administrative Agent and Swing Line Lender, and the L/C Issuers at Parent or any of its Subsidiaries and (iii) the refinancing of the $750 million senior secured notes due 2023 issued pursuant to that certain Indenture, dated as of October 17, 2016, among QCP SNF West REIT, LLC, QCP SNF Central REIT, LLC, QCP SNF East REIT, LLC and QCP AL REIT, LLC, as issuers, and Wilmington Trust, National Association, as trustee and notes collateral agent (such financing, together with the Manorcare Financing, the “Financing”). Such cooperation shall include (i) furnishing Parent and its Debt Financing Sources with the Audited Financial Statements and with audited financial statements for the Debtor and its Subsidiaries for each subsequent fiscal year within fifty (50) days after the end of such fiscal year, and quarterly and interim unaudited financial statements for the Debtor and its Subsidiaries for the fiscal quarters and interim periods ended March 31, 2018, June 30, 2018 and September 30, 2018 and for each subsequent fiscal quarter within thirty-five (35) days after the end of such fiscal quarter, in each case, with comparative financial information for the equivalent period of the prior year; (ii) using reasonable best efforts to ~~consummate the~~ furnish Parent and its Debt Financing ~~on or prior~~ Sources with information, audit reports, historical business and other financial data and any supplements thereto regarding the Debtor and its Subsidiaries customarily included in information memoranda and other syndication materials for revolving, term loan credit facilities, bond offering documents and equity offering documents, including assisting in preparing pro forma financial information for the Debtor and its Subsidiaries; (iii) to the ~~Closing Date. Such actions shall include, but not be limited to~~extent reasonably requested by Parent, using reasonable best efforts ~~to: (i) comply with~~ to prepare carve-out audited and ~~maintain in effect~~ unaudited financial statements for the ~~Debt Commitment Letter (subject~~ time period required or desirable to any ~~amendment, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below)~~Debt Financing Source; (iiiv) ~~satisfy~~using reasonable best efforts to cause members of management and other senior officers to participate in a reasonable number of meetings (including one-on-one meetings or conference calls), ~~or obtain~~ lender presentations, due diligence sessions and sessions with rating agencies, prospective lenders and investors and other syndication and marketing activities; (v) reasonably assisting Parent and its Debt Financing Sources in the preparation of any syndication and offering documents and materials, including information memoranda, lender presentations, offering memoranda, registration statements, prospectuses and other marketing documents (collectively, the “Marketing Documentation”) and provide and execute a ~~waiver thereof~~customary authorization letter with respect thereto; (vi) reasonably cooperating in marketing efforts of Parent; (vii) reasonably assisting in the negotiation and preparation of any credit agreements, on indentures, underwriting agreements, purchase agreements, pledge and security documents, mortgages, guarantees, hedging agreements and other definitive documents, a ~~timely basis all Financing Conditions~~ certificate of the chief financial officer of the Debtor with respect to solvency matters in a form acceptable to Parent and any other certificates, letters and documents (including any schedules and exhibits in connection with the foregoing) as may be reasonably requested by Parent; (viii) reasonably assisting in the obtaining of (A) audit reports, authorization letters, comfort letters and consents of accountants and auditors with respect to financial statements for the Debtor and its Subsidiaries for inclusion in any Marketing Documentation and (B) payoff letters, instruments of discharge and Lien terminations; (ix) providing information regarding the Debtor and its Subsidiaries required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act of 2001, to the extent ~~within~~ requested by its Debt Financing Sources at least eight (8) business days prior to the ~~control of Parent and its Affiliates~~Closing; (~~iii~~x) ~~negotiate~~reasonably assisting Parent in obtaining corporate, ~~execute~~ facility and ~~deliver Debt Financing Documents to the extent~~ debt security ratings from rating agencies; (xi) reasonably cooperating with Parent’s legal counsel (including providing customary back-up certificates) in connection with any legal opinions that such legal counsel may be required to ~~pay~~ deliver in connection with the ~~Required Amount~~ Financing; (~~after~~ xii) 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~~ reasonable actions as may be reasonably requested by Parent necessary 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 permit its Debt Financing Sources to ~~fund~~ evaluate the Debtor’s assets and cash management policies and procedures relating thereto for the purposes of establishing collateral arrangements as of the Closing and to cooperate with other due diligence conducted by its Debt Financing Sources; (xiii) using reasonable best efforts to obtain customary evidence of authority, customary officer’s certificates, good standing certificates (to the extent applicable) in ~~accordance~~ the respective jurisdictions of organization of the Debtor and its Subsidiaries, customary lien searches with respect to the Debtor and its Subsidiaries and insurance certificates; (xiv) using reasonable best efforts to facilitate the granting of a security interest (or perfection thereof) in collateral by the Debtor and its Subsidiaries to secure the Financing at Closing; and (xv) if applicable, reasonably cooperating with Parent in connection with the ~~Debt Commitment Letter, and enforcing Parent’s rights under~~ payoff of the ~~Debt Commitment Letter and the definitive agreements relating to the Debt Financing)~~Centerbridge Facility at Closing. (b) ~~From~~ The Debtor hereby consents to the ~~date~~ use of ~~this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX, Parent~~ its and its ~~Affiliates shall give~~ Subsidiaries’ logos in connection with 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~~Financing; provided that ~~none of Parent~~ such logos are used solely in a manner that is not intended to, nor reasonably likely to, harm or ~~Merger Sub shall be required to disclose~~ disparage the Debtor 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 obligationits Subsidiaries. (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”, ” means the Persons that will provide or ~~“Financing” shall include the documents (or commitments or financing sources, as applicable)~~ otherwise enter into agreements in connection with ~~any Alternative Financing to~~ the ~~extent permitted by this Section 7.18~~Financing, 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 Agreementtogether with, in ~~no event shall Parent or its~~ each case, their 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 financingRepresentatives.

Appears in 2 contracts

Sources: Plan Sponsor Agreement, Plan Sponsor Agreement (Quality Care Properties, Inc.)

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 IX~~Agreement. 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 ~~take~~the financing of the transactions contemplated by this Agreement, including the Offer and the Merger, that imposes conditions precedent to the funding of the Debt Financing on the Closing Date or ~~cause to be taken~~would otherwise affect the availability of the Debt Financing on the Closing Date, ~~all actions~~in 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 (~~iii~~if any) ~~negotiate~~related 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 or~~Company 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 IX~~the 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 Agreement~~hereunder, 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 ~~financing~~any 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~~ 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 any~~3) ~~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 or~~Dexter 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 Letter~~Financing, 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 IX~~Closing 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 any~~Letter)) (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~~The 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, ~~modification~~subject 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 Agreement~~Transactions (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 ~~and~~until 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 Financing~~Seller 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~~ 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 include~~terms and conditions described in the Financing Documents, ~~but not be limited to, using reasonable best efforts to:~~ including (i) ~~comply with and maintain~~ maintaining in effect the ~~Debt Commitment Letter (subject to any amendment~~Financing Documents until the Transactions are consummated in accordance with their respective terms, ~~supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below);~~ (ii) ~~satisfy~~satisfying, or ~~obtain a waiver thereof~~causing to be satisfied, on a timely basis all ~~Financing Conditions~~ conditions to the ~~extent~~ closing of and funding under the Financing Documents applicable to Parent and/or Merger Sub that are within its control, including paying when due all commitment fees and other fees arising under the ~~control of Parent~~ Financing Documents as and ~~its Affiliates;~~ when they become due and payable thereunder, and (iii) ~~negotiate, execute and deliver Debt~~ consummating the Financing ~~Documents~~ 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 Effective Time 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 terms 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 awareFinancing Documents; provided that ~~none of~~ Parent or and/or Merger Sub ~~shall be required~~ may amend or modify the Financing Documents, and/or elect 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 replace all or any portion of the Debt Financing or increase the amount of debt financing to be obtained with alternative debt financing subject only to such conditions to funding as are substantially similar, or are not less favorable in aggregate, from the standpoint of the Company and its shareholders (other than the holders of Excluded Shares), than the terms and conditions as set forth in the Financing Documents as in effect on the date hereof (the “Alternative Financing”), in each case only so long as (A) the aggregate proceeds of the Financing (as amended or modified) and/or the Alternative Financing, together with the aggregate proceeds of the Equity Financing and an amount of Available Cash that equals or exceeds the Available Cash Amount, will be sufficient for Parent and the Surviving Company to pay (x) the Merger Consideration, and (y) any other amounts required to be paid in connection with the consummation of the Transactions upon the terms and conditions contemplated hereby and (B) such amendment or modification or the Alternative Financing would not prevent, materially delay or materially impede or impair the ability of Parent and Merger Sub to consummate the Transactions. Parent shall deliver to the Company true and complete copies of all Contracts or other arrangements pursuant to which any alternative sources have committed to provide the Alternative Financing (the “Alternative Financing Documents”) (except for customary engagement and fee letters) as promptly as practicable after execution thereof. In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Documents and to the extent is not replaced 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)Alternative Financing, ~~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 DateCompany. (db) 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, nothing contained in Section 6.07(a) shall require, and in no event shall the reasonable best efforts of Parent or ~~its Affiliates~~ Merger Sub be ~~required~~ deemed or construed to require, either Parent or Merger Sub to pay any fees in excess of, or agree to “market flex” provisions less favorable to Parent, Merger Sub or the Surviving Company (or any ~~interest rates applicable to the Alternative Financing in excess~~ of their Affiliates) than, those contemplated by the Debt Commitment ~~Letter as~~ Letters and/or, if applicable, the Alternative Financing Documents (in ~~effect on~~ each case, whether to secure waiver of any conditions contained therein or otherwise). (c) Subject to 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)). terms and conditions of this Agreement, Parent and Merger Sub ~~expressly acknowledge and~~ agree not to amend, modify or waive any provision of the Financing Documents, if such amendment, modification or waiver reduces (or would reduce) the aggregate amount of the Financing or imposes new or additional conditions or otherwise expands, amends or modifies the conditions to the Financing in a manner that ~~their obligations under this Agreement~~would be expected to prevent or materially delay the ability of the Company, ~~including their obligations~~ Parent or Merger Sub to consummate the ~~Offer~~ Transactions or otherwise adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Financing Documents. Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any provision of, or termination by any party to, the Financing Documents or (ii) upon the receipt of any written notice from any person with respect to any threatened breach or threatened termination of the Financing Documents. (d) The Company agrees to provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide to Parent and Merger Sub, all reasonable cooperation as may be requested by Parent or its Representatives in connection with the Debt Financing and/or Alternative Financing and the ~~Merger~~Transactions, ~~are~~ including (i) participation in 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 or its Subsidiaries with Representatives of Parent and any sources or prospective sources of the Debt Financing and/or Alternative Financing, (ii) assisting in the preparation of offering memoranda, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations, other marketing documents and similar documents reasonably requested by Parent or its Representatives in connection with the Debt Financing and/or Alternative Financing (including using reasonable best efforts to obtain consents of accountants for use of their reports in any materials relating to the Debt Financing and/or Alternative Financing and delivery of one or more customary representation letters), (iii) as promptly as practicable, furnishing Parent and any sources or prospective sources of the Debt Financing and/or Alternative Financing with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent or any sources or prospective sources of the Debt Financing and/or Alternative Financing and is reasonably available to the Company (the “Required Information”) and using reasonable best efforts to cause the Company’s independent accountants to provide assistance and cooperation in connection therewith to Parent and any sources or prospective sources of the Debt Financing and/or Alternative Financing, (iv) reasonably cooperating with advisors, consultants and accountants of Parent or any sources or prospective sources of the Debt Financing and/or Alternative Financing 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, (v) assisting in the preparation of one or more credit agreements, note purchase agreements, indentures and/or other instruments, as well as any pledge and security documents, and other definitive financing documents, collateral filings or other certificates or documents as may be requested by Parent and otherwise facilitating the pledging of collateral, (vi) (A) to the extent customary and not ~~subject to~~prohibited by applicable Laws, facilitating the granting of guaranty, security or ~~conditioned on~~pledging of collateral and (B) executing and delivering any guaranty, ~~Parent~~pledge and security documents, commitment letters, certificates and other definitive financing documents (the “Definitive Debt Documents”), provided that any collateral pledged or security granted by the Company or any of its Subsidiaries under, and any obligations of the Company or any of its Subsidiaries under, any Definitive Debt Documents to which it is a party shall be contingent upon the occurrence of the Effective Time, (vii) taking all actions reasonably necessary to (A) permit prospective sources of the Debt Financing and/or Alternative Financing to evaluate the Company’s or any of its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements, provided that the information provided in connection therewith to such prospective sources shall be subject to the terms of the Confidentiality Agreements, and (B) establish bank and other accounts, blocked account agreements and lock box arrangements in connection with the foregoing, including over Available Cash, (viii) furnishing Parent, Merger ~~Sub’s receipt~~ Sub and their respective Representatives, as well as any prospective sources of ~~financing~~the Debt Financing and/or Alternative Financing, promptly (and, provided that Parent shall have requested, in writing, such information from the Company at least fifteen (15) Business Days prior to the Closing, then in any event at least ten (10) Business Days prior to the Closing) with all documentation and other information required with respect to the Debt Financing and/or Alternative Financing under applicable “know your customer” and anti-money laundering rules and regulations, provided that the information provided to such prospective sources shall be subject to the terms of the Confidentiality Agreements, (ix) using reasonable best efforts to obtain any necessary rating agencies’ confirmation or approval of the Debt Financing and/or Alternative Financing, and (x) taking all corporate actions reasonably necessary to permit the consummation of the Debt Financing and/or Alternative Financing, including the execution and delivery of any other certificates, instruments or documents contemplated by the Debt Financing and/or Alternative Financing and reasonably requested by Parent and to permit the proceeds thereof to be made available at Closing to consummate the Transactions. Neither the Company nor any of its Subsidiaries shall be required to (x) pay any commitment or similar fee prior to the Effective Time or (y) commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time or that would otherwise subject it to actual or potential liability in connection with any Financing. Nothing contained in this Section 6.07(c) or otherwise shall require the Company or any of its Subsidiaries to be an issuer or other obligor with respect to any Financing prior to the Effective Time. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing and/or Alternative Financing. (e) Parent shall, upon the termination of this Agreement in accordance with its terms, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs incurred by the Company or its Subsidiaries in connection with any cooperation provided pursuant to this Section 6.07 and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for and against any and all liabilities, expenses or losses actually suffered or incurred by them in connection with the arrangement of the Financing and any information utilized in connection therewith (other than information provided in writing by the Company or its Subsidiaries specifically for use in connection therewith), except in the event such liabilities, expenses or losses arose out of or result from the fraud, gross negligence, recklessness or willful misconduct of the Company, its Subsidiaries or any of their respective Representatives. Each of Parent and Merger Sub acknowledges and agrees that the Company and its Subsidiaries and their respective Representatives shall not, prior to the Effective Time, incur any liability to any person under any financing that Parent and Merger Sub may raise in connection with the Transactions.

Appears in 2 contracts

Sources: Merger Agreement (Yao Jinbo), Merger Agreement (58.com Inc.)

Financing. (a) ~~From~~ Buyer shall, and shall cause Parent and its subsidiaries to, use all commercially reasonable efforts to obtain the ~~date of this Agreement until~~ Financing on the ~~earlier of~~ terms and conditions described in the ~~Effective Time~~ Commitment Letter, when applicable, any Alternative Financing Commitment or, when applicable, the Commitment Letter or ~~the termination of this Agreement~~ Alternative Financing Commitment, each as amended, modified or replaced in accordance with ~~Article IX~~the Financing Modification Requirements (collectively, ~~Parent and its Affiliates shall use~~ the “Financing Commitment”), including using all 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 to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: (i) ~~comply with and~~ to maintain in effect the ~~Debt~~ Financing Commitment ~~Letter (subject~~ and to ~~any amendment~~negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitment or on other terms no less favorable to Buyer, ~~supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below);~~ (ii) to satisfy (or cause Parent and its subsidiaries to satisfy~~, or obtain a waiver thereof,~~ ) on a timely basis all ~~Financing Conditions to the extent within the control of Parent and its Affiliates;~~ conditions in such definitive agreements, (iii) ~~negotiate, execute and deliver Debt Financing Documents~~ subject to the ~~extent required~~ terms and conditions contemplated in the Financing Commitment, to ~~pay~~ consummate the ~~Required Amount~~ Financing at or prior to the Closing, (~~after taking into account any cash~~ iv) to comply with its obligations under the Financing Commitment and (v) to cause the Persons providing the Financing to fund the Financing contemplated by the Financing Commitment on ~~hand, available lines of credit~~ the Closing Date (including by enforcing its rights under ~~Borrower’s existing revolving credit~~ the Financing Commitment). Buyer shall deliver to Seller true and ~~securitization facilities~~complete copies of all agreements (other than any fee letters and engagement letters) pursuant to which any such alternative source shall have committed to provide Buyer with any portion of the Financing. Buyer shall give Seller prompt notice upon becoming aware of any material breach by any party to the Financing Commitment or any termination of the Financing Commitment. Buyer shall refrain (and ~~other sources~~ shall cause its subsidiaries to refrain) from taking, directly or indirectly, any action that would reasonably be expected to result in a failure of ~~immediately available funds), which shall reflect~~ any of the ~~terms~~ conditions contained in the ~~Debt~~ Financing Commitment ~~Letter~~ or in any definitive agreement related to the Financing. Buyer shall not agree, without Seller’s prior written consent, to or permit any replacement, amendment, supplement or other modification of, or waive any of its rights under, all or a portion of the Financing Commitment if such replacement, amendment, supplement, modification or waiver (~~including~~ 1) reduces the aggregate amount of the Financing Commitment, (2) imposes new or additional conditions or otherwise amends, expands or modifies any ~~“market flex” provisions (if any) related thereto)~~ of the conditions to the Financing in any respect that could make such conditions less likely to be satisfied before the Closing or ~~on such other terms acceptable to Parent~~ that would expand the possible circumstances under which such conditions would not ~~constitute an Adverse Effect~~ be satisfied by the Closing Date, (3) can reasonably be expected to delay the Closing or the date on which the Financing ~~as compared~~ would be obtained or (4) could adversely impact the ability of Buyer and its Affiliates to ~~those set forth in the Debt Commitment Letter delivered~~ enforce their rights against other parties to the ~~Company on the date hereof; and (iv) in the event that the Offer Conditions have been satisfied~~ Financing Commitment 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~~Financing (the “Financing Modification Requirements”). (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~~ that the Buyer becomes aware of any event or circumstance that makes procurement of any portion of the ~~Debt~~ Financing ~~becomes unavailable~~ unlikely to occur in the manner or from the sources contemplated in the Commitment Letters, Buyer shall promptly notify Seller and shall use all commercially reasonable efforts to arrange as promptly as practicable, but in no event later than one day prior to the Closing Date, any such portion from alternative debt financing sources, on ~~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 consistent with the Financing ~~Conditions, not involving~~ Modification Requirements (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 IXactually obtained by Buyer, 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~~Alternative Financing Commitment”); 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~~ Buyer shall keep ~~the Company~~ Seller informed ~~in reasonable detail~~ on a current basis 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~~ provide Seller with ~~this paragraph and the previous paragraph is the “Alternative Financing.” For purposes~~ copies 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 all documents ~~(or commitments or financing sources, as applicable) in connection with any Alternative Financing~~ related 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~~herein, ~~in no event shall Parent or~~ if Buyer’s inability to consummate the Financing is attributable to Seller’s failure to comply with 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~~ obligations under Sections 5.8(b)(i) and (~~including the market flex provisions (if any~~c)(i)) 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 , then, for all purposes under this Agreement, ~~including their obligations~~ Buyer shall not be deemed in breach of the covenant in this Section 5.8(a), the representations in Section 4.10 or the covenant in Section 7.2(a)(iii) with respect to ~~consummate~~ the ~~Offer and the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of financing~~Cash Purchase Price.

Appears in 2 contracts

Sources: Asset Purchase Agreement, Asset Purchase Agreement (Midstates Petroleum Company, Inc.)

Financing. ~~(a) From~~ At the ~~date~~ Closing, assuming the funding 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,~~ Letter and ~~enforcing Parent’s rights under~~ after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the ~~definitive agreements relating~~ Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the ~~Debt Financing).~~ Company (ba) ~~From~~ a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement ~~until the earlier of the Effective Time~~ (as may be amended or ~~the termination of this Agreement~~ modified in accordance with ~~Article IX~~the terms hereof, ~~Parent~~ the “Debt Commitment Letter”) and ~~its Affiliates shall give the Company prompt notice~~ (b) a copy of any ~~material breach, repudiation or threatened material breach or repudiation by any party~~ fee letters related 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 “Fee Letters” 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) In the event all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by together with the Debt Commitment ~~Letter (including~~ Letter, the ~~flex provisions (if any)~~“Financing Letters”) (~~other than as a result of~~ which may be redacted to remove the ~~Company’s breach~~ fee amounts, economic terms and the terms 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~~in transactions of this type, ~~so long as such redaction does not extend to any~~ none of which redactions covers 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~~ below the Required Amount ~~(after taking into account any cash on hand~~or adversely affect the conditionality, ~~available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) and other sources of immediately available funds)~~enforceability, ~~(C) prevent~~ termination or ~~materially delay or make materially less likely the funding~~ availability of the Debt ~~Financing (or the satisfaction of the Financing Conditions) on the Closing Date or materially impair~~Financing). Pursuant to, ~~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 subject to the ~~Debt Commitment Letters or the definitive agreements with respect thereto (clauses (A) through (E)~~terms and conditions of, ~~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~~ the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (~~1) to add and appoint additional arrangers~~the “Debt Financing”). As of the date hereof, ~~bookrunners, underwriters, agents, lenders and similar Debt Financing Entities that have not executed~~ neither the Debt ~~Financing Documents as in effect on~~ Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the ~~date hereof and, in connection therewith, amend the economic~~ execution 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 delivery of this Agreement, ~~references to “Debt Financing” shall include~~ no amendment, restatement or other modification is contemplated and 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 respective 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 have not been withdrawn, rescinded, amended, restated or otherwise modified in ~~effect on~~ any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date ~~hereof (including~~ of this Agreement, the ~~market flex provisions (if any))~~Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger ~~Sub expressly acknowledge~~ Sub, be sufficient (after netting out any fees, original issue discount, expenses and ~~agree that their obligations under~~ similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, ~~including their obligations~~ (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to ~~consummate~~ constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the ~~Offer~~ part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the ~~Merger~~satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are ~~not subject to~~no side letters or other agreements, contracts or ~~conditioned on~~arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, ~~Parent’s or Merger Sub’s receipt of financing~~other than as expressly set forth in the Financing Letters.

Appears in 2 contracts

Sources: Merger Agreement (Regal Rexnord Corp), Merger Agreement (Altra Industrial Motion 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 ~~take~~cause BI-LO Holding, ~~or cause~~ LLC (“BI-LO Holding”) to ~~be taken~~obtain 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 done~~BI-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 ~~Date~~Date (it being understood that it is not a condition to Closing under this Agreement, nor the consummation of the Merger, for Parent or Merger Sub to obtain the Financing or any alternative financing). ~~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 (d~~b) ~~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 ~~breach~~breach 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 which~~Financing 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 obligation~~the 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 Amount~~transactions 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 amend~~sessions with rating agencies in connection with the Financing, ~~modify~~in each case, ~~supplement~~with 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 7.18~~Agreement 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 Financing~~Company or its Subsidiaries expressly for use in connection therewith). Notwithstanding anything to the contrary ~~contained~~ in this ~~Agreement~~Section 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)

Financing. (a) ~~From the date of this Agreement until the earlier of the Effective Time~~ Purchaser may, at its option, obtain one or ~~the termination of this Agreement in accordance with Article IX~~more financing commitment letters (each, 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 a "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 (ivLetter") in ~~the event~~ a customary form 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 for all or ~~any~~ a portion of the ~~Debt Financing becomes unavailable on the terms and conditions~~ amount of proceeds as contemplated by the Debt ~~Commitment~~ Financing 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 hereof; provided that the aggregate amount of proceeds from the Debt ~~Financing,~~ Financing Letter (including any Commitment Letter) shall provide for at least the same amount of proceeds to Purchaser as the Debt Financing Letter as in ~~each case, so long as such amendments would~~ effect on the date hereof. Any Commitment Letter shall include a termination date not ~~be reasonably expected to result in an Adverse Effect on Financing. Upon request~~ earlier than the one-year anniversary of the ~~Company, Parent shall keep the Company informed in reasonable detail~~ date 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 execution of this Agreement~~, references~~ . Any Commitment Letter shall be made by some or all of the lenders that are parties 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~~ or by another national financial institution of similar repute of the ~~market flex provisions (if any)) or agree~~ lenders that are party 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~~ Financing Letter as in effect on the date ~~hereof~~ hereof. (~~including~~ b) Purchaser agrees to notify Seller if, at any time prior to the ~~market flex provisions~~ Closing Date, (~~if any))~~i) the Debt Financing Letter shall, to the extent applicable, expire or be revoked or otherwise terminated for any reason or (ii) any financing source that is a party to the Debt Financing Letter notifies Purchaser that such source no longer intends to provide financing to Purchaser. ~~Parent and Merger Sub expressly acknowledge and agree~~ Purchaser shall use its reasonable best efforts to remedy any matter referred to in clause (i) or (ii) of the immediately preceding sentence as soon as reasonably practicable; provided that ~~their obligations under this Agreement~~Purchaser shall not be required to enter into any financing commitments or understandings in an aggregate amount materially different, ~~including their obligations~~ or on terms less beneficial to ~~consummate~~ Purchaser in any material respect, than those set forth in the ~~Offer~~ term sheets attached to the Debt Financing Letter as in effect on the date hereof. (c) If Purchaser has obtained a Commitment Letter and the ~~Merger~~Closing has not occurred on or before the termination of such Commitment Letter, Purchaser will use its reasonable best efforts to obtain, and will provide Seller with a copy of, a new Debt Financing Letter that provides for at least the same amount of financing as such Commitment Letter and for other terms and conditions reasonably satisfactory to Purchaser and, to the extent the terms and conditions are ~~not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of financing.~~materially less beneficial to Seller than those contained in the term sheets attached to the Debt Financing Letter,

Appears in 2 contracts

Sources: Stock Purchase Agreement (Enron Corp/Or/), Stock Purchase Agreement (Enron Corp/Or/)

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~~appropriate action, ~~and use reasonable best efforts to~~ do, or cause to be done, all things reasonably ~~necessary~~ necessary, proper or ~~advisable~~advisable under applicable Laws, and to execute and deliver, or cause to be executed and delivered, such instruments and documents as may be reasonably required, to arrange and ~~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 include~~on 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) ~~below~~the 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 Affiliates~~using 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 or~~Financing Agreements as soon as practicable, ~~upon funding would be satisfied~~but 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 ~~Agreement~~Agreement and that are not less favorable in the aggregate (as determined by the Purchaser in its reasonable judgment) to the Purchaser than those contained in the Loan Financing Documentation. The Purchaser shall deliver to the Sellers complete and correct copies of all amendments, ~~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 ~~Company~~Sellers shall, ~~amend~~and shall cause the Company and its Subsidiaries to, ~~modify~~and shall use its commercially reasonable efforts to cause its and the Company and its Subsidiaries independent accountants, ~~supplement~~legal 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 Letter~~their 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 7.18~~Loan 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 financing~~Loan 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~~ The Purchaser and ~~its Affiliates~~ Finance Merger Sub: (i) 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~~ Equity 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 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 conditions (including ~~under Borrower’s existing revolving credit and securitization facilities~~flex provisions) ~~and other sources of immediately available funds), which shall reflect the terms contained~~ described 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~~ Fee Letter and the Equity Commitment Letters, respectively, to the extent necessary to consummate the Contemplated Transactions, including seeking to enforce the terms of the Equity Commitment Letters; provided, however, that in no event shall the Purchaser and Finance Merger Sub be required to initiate any Action to cause any Committed Lender to fund the Debt Financing). ; (bii) ~~From the date of this Agreement until the earlier of the Effective Time~~ shall not permit any amendment or ~~the termination of this Agreement in accordance with Article IX~~modification to be made to, ~~Parent and its Affiliates shall give the Company prompt notice~~ or consent to any waiver of any ~~material breach~~provision or remedy under, ~~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~~Letter, the ~~disclosure of which~~Fee Letter or any Definitive Debt Agreement, in each case, if such amendment, modification, consent or waiver (x) reduces 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~~ aggregate amount of the Debt Financing ~~becomes unavailable on~~ below an amount, together with any available cash of the ~~terms~~ Purchaser and Finance Merger Sub, required to pay the Required Payment Amount, (y) imposes any new or additional conditions ~~contemplated by~~ to the Debt Financing or otherwise adversely expands, amends or modifies any other provision of the Debt Commitment Letter, the Fee Letter or such Definitive Debt Agreement (~~including 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)~~including, ~~then Parent and its Affiliates shall (i) promptly notify the Company thereof and the reasons therefor~~without limitation, (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~~Conditions), 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~~ prevent or materially delay the Closing, or (z) adversely impacts the ability of the Purchaser and Finance Merger Sub to enforce its rights prior to Closing against the Committed Lenders or any other party to the Debt Commitment Letter, the Fee Letter or any Definitive Debt Agreement to timely consummate the Contemplated Transactions; provided, that the Purchaser and Finance Merger Sub may amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who have not executed the Debt Commitment Letter as of the date hereof; provided that the aggregate principal amount of the Debt Financing is not reduced as a result of such ~~alternative financing~~ amendment unless, contemporaneously with such amendment, the Equity Commitment Letters are amended to increase the commitments thereunder in respect of the Equity Financing by an amount equal to such reduction in the committed Debt Financing; (iii) shall not permit any amendment or modification to be ~~funded on~~ made to, or consent to any waiver of any provision or remedy under, the ~~Closing Date or impose additional conditions precedent to the funding of such alternative financing on the Closing Date.~~ Equity Commitment Letters; (div) 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~~permit, ~~modify~~or consent to, ~~supplement, restate, assign, substitute~~ any assignment of rights or ~~replace~~ obligations under the Debt Commitment Letter other than as explicitly permitted pursuant to the proviso to clause (ii) above; and (v) shall not permit, or consent to, any ~~Debt Financing Document if~~ assignment of rights or obligations under the Equity Commitment Letters; provided, that any Sponsor may allocate all or a portion of its obligations to fund the Commitment Amount (as defined in the applicable Equity Commitment Letter) to an Affiliate (as defined in the applicable Equity Commitment Letter) or to an entity sponsored, co-sponsored, managed by or advised by an Affiliate (as defined in the applicable Equity Commitment Letter) of such Sponsor, but without such allocation relieving or otherwise diminishing the obligation of such Sponsor to fund the Commitment Amount in full; and provided, further, that any such allocation shall not relieve such Sponsor of its obligations under the applicable Equity Commitment Letter to fund such Sponsor’s entire Commitment Amount (as defined in the applicable Equity Commitment Letter) except to the extent the entire Commitment Amount (prior to giving effect to such allocation and without giving effect to any amount funded under any other Equity Commitment Letter) is funded to the Purchaser in accordance with the terms of such Equity Commitment Letter. The Purchaser shall promptly deliver to the Company copies of any such amendment, modification, ~~supplement, restatement, assignment, substitution~~ consent 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 Financingwaiver. 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 “Financing” or “Debt Financing,” as applicable, shall include the financing contemplated by ~~any Alternative Financing~~ the Commitment Letters as permitted to be amended, modified or waived by this Section 7.07(a), 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 ~~(or commitments or financing sources, as applicable) in connection with any Alternative Financing~~ to the extent amended, modified or waived as 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.~~ 7.07(a). (b) Notwithstanding anything to the contrary ~~contained~~ in this Agreement, nothing contained in this Section 7.07 shall require, and in no event shall ~~Parent~~ the reasonable best efforts of the Purchaser be deemed or ~~its Affiliates be required~~ construed to require, the Purchaser or any Affiliate thereof to (i) seek the Equity Financing from any source other than those counterparty to, or in any amount in excess of that contemplated by, the Equity Commitment Letter, or (ii) pay any fees ~~or any interest rates applicable to the Alternative Financing~~ materially in excess of those contemplated by the Debt Commitment Letter or the related fee letter in respect thereof (after giving effect to any “flex” terms with respect thereto). (c) Without limiting the generality of Section 7.07(a), the Purchaser shall: (i) maintain in effect each of the Commitment Letters and each Definitive Debt Agreement in accordance with the terms and subject to the conditions thereof until the Closing Date and the consummation of the transactions contemplated hereby to occur on the Closing Date; (ii) negotiate and enter into definitive agreements with respect to the Debt Financing (collectively, the “Definitive Debt Agreements”) on the terms and conditions (including the flex provisions) contained in the Debt Commitment Letter and the Fee Letter or on other terms not materially less favorable, taken as a whole, with respect to the Purchaser and Finance Merger Sub as to conditionality than the terms provided in the Debt Commitment Letter; and (iii) satisfy on a timely basis all of the Debt Financing Conditions and any other conditions within Purchaser’s control to the funding of the Financing in the Commitment Letters and the Definitive Debt Agreements on or prior to the Closing Date or, if deemed advisable by the Purchaser, seek the waiver of conditions applicable to the Purchaser and Finance Merger Sub in the Debt Commitment Letter (other than any condition where the failure to be so satisfied is a direct result of Trilogy’s failure to furnish information required to be delivered by such Trilogy Party under Section 7.07(d)). The Purchaser and Finance Merger Sub shall give the Sellers and the Trilogy Parties prompt notice of (A) any breach, default, termination or repudiation by any party to any of the Commitment Letters of which the Purchaser or Finance Merger Sub becomes aware and (B) the receipt by the Purchaser or Finance Merger Sub of any written notice or other written communication from any Debt Financing Source with respect to any breach, default, termination or repudiation by any party to any Commitment Letters of any provisions of the Commitment Letters. (d) If any portion of the Debt Financing necessary to consummate the Contemplated Transactions becomes unavailable, the Purchaser and Finance Merger Sub shall (i) promptly notify the Representative thereof, and (ii) use its reasonable best efforts to arrange to obtain in replacement thereof, as soon as reasonably practicable, any such portion from alternative sources on terms and conditions not materially less favorable to the Purchaser and Finance Merger Sub as those contained in the Debt Commitment Letter and, unless otherwise consented to by the Sellers, on a basis that is not subject to any condition precedent materially less favorable to the Purchaser or Finance Merger Sub than the Debt Financing Conditions (“Alternative Financing”). Once obtained, the Purchaser and Finance Merger Sub shall provide the Representative with all agreements pursuant to which any such alternative source shall have committed to provide the Purchaser or Finance Merger Sub with any portion of the Debt Financing and promptly provide the Representative with such information it may reasonably request regarding any alternative financing arrangements or plans. Upon the entry by the Purchaser or Finance Merger Sub into any commitment letter for an Alternative Financing required pursuant to this clause (c), the term “Debt Commitment Letter” shall include the commitment letter in respect of such Alternative Financing and the term “Fee Letter” shall include any fee letter entered into in respect of such Alternative Financing and the appropriate changes shall be deemed to be made to the terms “Debt Financing Sources,” “Committed Lenders” and “Debt Financing.” (e) Prior to the Closing, each of the Trilogy Parties shall provide, and the Company shall cause its respective Subsidiaries and Affiliates to provide, and shall respectively use their reasonable best efforts to cause their respective representatives, including legal and accounting, to provide, all cooperation reasonably requested by the Purchaser that is customary in connection with the arrangement of syndicated loans similar to the Debt Financing or other acquisition loan financings (provided that such requested cooperation is made on reasonable notice and does not unreasonably interfere with the ongoing operations of the Business, the Company or its Subsidiaries and Affiliates), including cooperation that consists of: (i) furnishing the Purchaser with such pertinent information (other than financial information, which is covered by Section 7.07(e)(ii)) regarding the Company or its Subsidiaries (including information to be used in the preparation of one or more information packages regarding the business, operations, financial projections and prospects of the Company and its Subsidiaries) that is customarily provided by a borrower in connection with the arrangement of syndicated loans similar to the Debt Financing or other acquisition loan financings, in each case, as reasonably requested by the Purchaser, for the purposes of assisting the Purchaser in its preparation of customary information documents or rating agency or lender presentations relating to such arrangement of loans (other than financial information, which is covered by Section 7.07(e)(ii)); (ii) (A) furnishing the Purchaser with the unaudited financial statements of the Company and its Subsidiaries, on a consolidated basis, for any fiscal quarter ended after the date of the most recent audited financial statements and more than 45 days prior to Closing and informing the Purchaser if the Sellers, the Company or any of its Subsidiaries shall have knowledge of any fact that most likely requires the restatement of such financial statements, (B) assisting the Purchaser with the Purchaser’s preparation of the specific pro forma financial statements of the Company and its Subsidiaries that are required to be delivered under clause (16) under “Conditions Precedent to Initial Funding” in Exhibit A of the Debt Commitment Letter (as in effect on the date ~~hereof~~ hereof), and (C) to the extent reasonably required by the Debt Financing Sources to be included in any marketing documents related to the Debt Financing, assisting the Purchaser with the Purchaser’s preparation of financial information regarding the Company and its Subsidiaries that are reasonably and readily derivable from the financial statements and financial records of the Company and its Subsidiaries required to be furnished under clause (A) above; provided, however, that nothing in this Section 7.07(e)(ii) shall be deemed to impose on the Company or its Subsidiaries an obligation to re-issue, restate or otherwise furnish financial statements that are not otherwise specifically required under this Agreement; (iii) assisting in preparation for and participating and causing senior management of the Company and its Subsidiaries to participate in a reasonable number of meetings, drafting sessions and due diligence sessions (including accounting diligence sessions) (including one or more lender meetings and calls with the ~~market flex provisions~~ parties acting as lead arrangers, bookrunners or agents for, and prospective lenders, for the Debt Financing; (~~if any)~~iv) assisting with the preparation by the Purchaser of customary materials for lender information memoranda and similar documents, including the execution and delivery of customary representation letters in connection with bank information memoranda and reviewing and commenting on the Purchaser’s draft of a business description and “Management’s Discussion and Analysis” of the Company’s financial statements to be included in marketing materials contemplated by the Debt Financing; provided, that (x) this clause (iv) shall not require the Company to provide any information (financial or otherwise) not otherwise required to be delivered by the Company under clause (i) or ~~agree~~ (ii) above, and (y) any lender information memoranda, “bank books”, marketing materials, authorization letters and any other documents required, or otherwise delivered to any, Committed Lender or prospective Debt Financing Source, in connection with the Debt Financing shall contain (A) disclosure reflecting the Purchaser and its Subsidiaries post-Closing as the obligors, and (B) disclosures and disclaimers exculpating the Representative, the Sellers, the Trilogy Parties and their respective Affiliates with respect to any ~~term~~ liability related to the contents or use thereof by the recipients thereof; (~~including any market flex term (if any)~~v) ~~less favorable (taken~~ assisting the Purchaser in the Purchaser’s preparation, negotiation and execution of one or more credit agreements, pledge agreements, security agreements, guarantees and other definitive financing documents or other certificates, customary closing certificates and documents as ~~a whole)~~ may be reasonably requested by the Purchaser and that are required to ~~Parent than such term contained in~~ be obtained under the Debt Commitment Letter ~~as in effect on the date hereof~~ at Closing (including cooperation in connection with the ~~market flex provisions (if any)). Parent and Merger Sub expressly acknowledge and agree that their obligations under~~ pay-off of existing Indebtedness to the extent contemplated by this ~~Agreement, including their obligations to consummate the Offer~~ Agreement and the ~~Merger~~release of liens securing such existing Indebtedness); provided, ~~are not~~ that no obligation of the Company or any of its Subsidiaries under any such agreements or documents shall be effective until the Closing; (vi) providing customary authorization letters to the Debt Financing Sources as reasonably requested by the Purchaser in writing, authorizing the distribution of information to prospective lenders, subject toto customary confidentiality undertakings; (vii) to the extent reasonably requested by the Debt Financing Sources for the purposes of obtaining customary waivers, consents, estoppels and approvals in connection with the Debt Financing from other parties to material licenses, leases, encumbrances and Contracts relating to the Company or ~~conditioned on~~its Subsidiaries, ~~Parent~~using their respective reasonable best efforts to arrange discussions among the Purchaser, the Debt Financing Sources and their respective representatives with such other parties to such material licenses, leases, encumbrances and Contracts as of the Closing; (viii) taking all reasonable actions necessary to (A) permit the Debt Financing Sources to evaluate the Company’s current assets and cash for the purposes of establishing collateral arrangements by the Purchaser as of the Closing and to assist with other customary collateral audits and due diligence examinations and (B) establish bank and other accounts and, effective as of the Closing, blocked account agreements and lock box arrangements and establish other collateral arrangements to the extent necessary in connection with the Debt Financing; and (ix) providing to the Purchaser for further distribution to the Debt Financing Sources all documentation and other information reasonably required under applicable “know your customer” and anti-money laundering rules and regulations in connection with the Debt Financing. Notwithstanding anything to the contrary in this Section 7.07(e): (A) no Seller, Trilogy Party or ~~Merger Sub’s receipt~~ any of ~~financing.~~their respective Subsidiaries or Affiliates or any of their respective representatives shall be required to pay any commitment or other fee or incur any other liability or expense in connection with the Debt Financing (in the case of the Trilogy Parties, prior to the Closing); (B) no Seller, Trilogy Party or any of their respective Subsidiaries or Affiliates shall be required to take any action or do anything that wou

Appears in 2 contracts

Sources: Equity Purchase Agreement (NorthStar Healthcare Income, Inc.), Equity Purchase Agreement (Griffin-American Healthcare REIT III, Inc.)

Financing. (a) ~~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 ~~take~~obtain, or cause to be ~~taken~~obtained, ~~all actions~~the 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 include~~expected 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 (iv~~Debt 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 Letter~~Subordinated 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 Financing~~Securities 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, ~~supplement~~waiver, ~~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 Financing~~Financing 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 Financing~~Marketing 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,~~ 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 ~~include~~not, ~~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 hand~~prior to the Closing, ~~available lines of credit~~ the Definitive Financing Agreements or (~~including under Borrower’s existing revolving credit and securitization facilities~~D) ~~and other sources of immediately available funds~~otherwise 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 any~~or 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 (iv~~Redacted 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 satisfied~~execution 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 counsel~~immediately preceding sentence, is subject to ~~attorney-client~~ applicable legal privilege or ~~which would be in violation of any~~ confidentiality ~~obligation~~obligations. (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 conditions~~sources 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 Effective Time or the termination of this Agreement in accordance with Article IX~~Parent shall use, ~~Parent~~ and shall cause its ~~Affiliates shall use~~ subsidiaries 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~~ proceeds of the Financing on the terms and ~~to consummate~~ conditions (including any “flex” provisions) described in the Debt ~~Financing on or prior~~ Commitment Letters, including executing and delivering all such documents and instruments as may be reasonably required thereunder and using (and causing its subsidiaries 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 Financing and the Debt Commitment ~~Letter~~ Letters; (~~subject~~ ii) negotiate and enter into definitive financing agreements with respect to the Financing on the terms and conditions contained in the Debt Commitment Letters (the “Financing Agreements”); (iii) satisfy, or cause their respective Representatives to satisfy, as promptly as practicable and on a timely basis all conditions to the Financing contemplated by the Debt Commitment Letters that are within its control (including by paying any commitment fees or other fees or deposits required by any fee letters relating to the Debt Commitment Letters); (iv) comply with its obligations under the Debt Commitment Letters to the extent the failure to comply with such obligations would adversely impact the amount or timing of the Financing (taking into account the expected timing of the Marketing Period) or the availability of the Financing prior to the Offer Acceptance Time; (v) enforce its rights under the Debt Commitment Letters to the extent that the failure to enforce would adversely impact the amount or timing of the Financing (taking into account the expected timing of the Marketing Period) or the availability of the Financing at the Offer Acceptance Time; and (vi) cause the Financing Sources and any other Persons providing Financing to fund the Financing no later than the Offer Acceptance Time. (b) Parent shall not agree to or permit any amendment, supplement, ~~replacement~~termination, ~~substitution~~modification or replacement of, ~~termination~~ or grant any waiver of, any condition, remedy 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 provision under 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~~ Company if such amendment, supplement, termination, modification, ~~supplement, restatement, assignment, substitution~~ replacement or ~~replacement~~ waiver would or would reasonably be expected to (~~A) impose additional conditions precedent or expand upon the conditions precedent to the funding of the Debt Financing, (B~~i) reduce the aggregate amount of the ~~Debt~~ Financing ~~or the net cash proceeds available~~ from that contemplated by the Debt ~~Financing~~ Commitment Letters delivered as of the date hereof to an amount such 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)transactions contemplated hereby could not be consummated, (Cii) ~~prevent~~ impose any new or ~~materially delay~~ additional conditions or ~~make materially less likely the funding~~ otherwise expand, amend or modify any of the ~~Debt Financing (or~~ conditions to the ~~satisfaction~~ receipt of the Financing ~~Conditions~~in a manner that would (x) ~~on the Closing Date or materially impair,~~ delay or prevent the ~~consummation~~ Offer or (y) make the funding of any portion of the ~~transactions contemplated by this Agreement, including~~ Financing (or satisfaction of any condition to obtaining any portion of the ~~Offer and the Merger, (D~~Financing) ~~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 in any material respect 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~~ Financing Agreements (~~clauses (A) through (E)~~it being understood and agreed that, ~~each an “Adverse Effect on Financing”); provided that~~ in any event, Parent ~~may, without the prior written consent of the Company, amend, modify, supplement, restate, assign, substitute or replace~~ may amend the Debt Commitment ~~Letter, including (1)~~ Letters to add ~~and appoint additional~~ lenders, arrangers, bookrunners, ~~underwriters,~~ agents, ~~lenders and~~ managers or similar ~~Debt Financing Entities~~ entities that have not executed the Debt ~~Financing Documents~~ Commitment Letters 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 Financingthis Agreement). Upon ~~request of the Company~~any amendment, ~~Parent shall keep the Company informed in reasonable detail of the status of Parent’s efforts to arrange the Debt Financing. Any alternative~~supplement, ~~substitute~~ modification or replacement ~~debt financing obtained by Parent~~ of, or waiver of, any Debt Commitment Letter in accordance with this ~~paragraph and~~ Section 6.14(b), Parent shall promptly deliver a copy thereof to 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~~ Company and references herein to “Debt Commitment ~~Letter”~~Letters” shall include and mean such documents as amended, ~~“Debt Fee Letters”~~supplemented, ~~“Debt Financing Documents”~~modified, ~~“Debt Financing Entities”~~replaced or waived in compliance with this Section 6.14(b), ~~“Debt Financing Sources”, or~~ and references to “Financing” shall include and mean 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~~ Letters as amended, supplemented, modified, replaced or waived in ~~effect on the date hereof (including the market flex provisions (if any~~compliance with this Section 6.14(b)~~) 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 financingapplicable.

Appears in 2 contracts

Sources: Merger Agreement (IntraLinks Holdings, Inc.), Merger Agreement (Synchronoss 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,~~ Parent ~~and its Affiliates~~ shall use its reasonable best efforts to ~~take~~obtain the Financing on the terms and conditions described in the Commitment Letter, ~~or cause to be taken, all actions, and use~~ including (i) using its reasonable best efforts to ~~do, or cause to be done, all things reasonably necessary or advisable, to arrange~~ negotiate and ~~obtain~~ enter into definitive financing agreements with respect thereto on terms and conditions contemplated in the ~~Debt Financing and to consummate the Debt Financing on or prior~~ Commitment Letter provided to the ~~Closing Date. Such actions shall include~~Company pursuant to Section 4.8, ~~but not be limited to~~(ii) fully paying any and all commitment fees or other fees required by the Commitment Letter when due pursuant to the provisions thereof, (iii) using its reasonable best efforts ~~to: (i) comply with and maintain~~ to satisfy all conditions applicable to Parent in ~~effect~~ the ~~Debt~~ Commitment Letter ~~(subject to any amendment~~and such definitive financing agreements, 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) using its reasonable best efforts to comply with its obligations under the Commitment Letter and (v) enforcing its rights under the Commitment Letter. Parent shall keep the Company reasonably informed and in ~~the event that the Offer Conditions have been satisfied or waived or, upon funding would be satisfied, consummate the Debt Financing~~ reasonable detail (including ~~by instructing~~ providing the ~~Debt Financing Sources~~ Company with copies of all definitive documents related to ~~fund~~ the ~~Debt~~ Financing in accordance with Section 4.8) with respect to all material developments concerning the ~~Debt Commitment Letter, and enforcing Parent’s rights under~~ Financing. Without limiting the ~~Debt Commitment Letter and the definitive agreements relating to the Debt Financing). (b) From the date of this Agreement until the earlier~~ generality of the ~~Effective Time or the termination of this Agreement in accordance with Article IX~~foregoing, Parent ~~and its Affiliates~~ shall give the Company prompt notice (x) of any material breach or default by any party to any of the Commitment Letter or definitive financing agreements related to the Financing of which Parent becomes aware, (y) of the receipt of any written notice from any Financing Party with respect to any (1) actual or potential material breach, ~~repudiation or threatened material breach~~ default, termination or repudiation by any party to any of the ~~Debt~~ Commitment Letter or definitive financing agreements related to the Financing of ~~which Parent~~ any provisions of the Commitment Letter or ~~its Affiliates becomes aware; provided that none~~ definitive financing agreements related to the Financing or (2) dispute or disagreement between or among any parties to any of the Commitment Letter or definitive financing 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 (z) if at any time management of Parent ~~or Merger Sub shall~~ believes 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 ~~becomes unavailable~~ on the terms and ~~conditions~~ conditions, in the manner or from the sources contemplated by the ~~Debt~~ Commitment Letter or definitive financing agreements related to the Financing. As soon as reasonably practicable, Parent shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause (~~including~~ x), (y) or (z) of the ~~flex provisions (if any))~~ immediately preceding sentence; provided, that Parent need not provide any information believed to be privileged, that is requested for purposes of litigation or that is related to fees and other economic information redacted from such agreements that is consistent with the information redacted from the Fee Letters executed in connection with the Commitment Letter and consistent with Section 4.8. Parent shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under, the Commitment Letter, Fee Letters or definitive financing agreements, and/or substitute other debt or equity financing for all or any portion of the Financing from the same and/or alternative financing sources, provided that Parent shall not permit any such amendment or modification to be made to, or any waiver of any material provision or remedy under, the Commitment Letter or replace all or a portion of the Financing with alternate financing arrangements that, in each case, would reduce the aggregate amount of the Financing (other than immaterial reductions or as otherwise proved in such Commitment Letter or Fee Letters, including “flex provisions”), amend the conditions to the drawdown of the Financing in a ~~result~~ manner adverse to the interests of the Company~~’s breach of~~ , or which would otherwise in 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 respect 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, Agreement without the prior written consent of the ~~Company~~Company (which consent shall not be unreasonably withheld, ~~amend~~conditioned or delayed). Parent shall promptly deliver to the Company copies of any such amendment, ~~modify~~modification or replacement, ~~supplement, restate, assign, substitute~~ provided that Parent shall not be obligated to deliver to the Company copies of any Fee Letters or ~~replace~~ other information redacted from such agreements that is consistent with the ~~Debt~~ economic information redacted from the Fee Letters entered into in connection with the Commitment Letter and consistent with Section 4.8. (b) If all or any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter, ~~including (1)~~ Parent shall use its reasonable best efforts to ~~add and appoint additional arrangers, bookrunners, underwriters, agents, lenders and similar Debt~~ arrange to promptly obtain such Financing ~~Entities that have~~ from alternative sources on terms not ~~executed the Debt Financing Documents as in effect on the date hereof and~~materially less favorable, in ~~connection therewith~~the aggregate, ~~amend the economic and other arrangements~~ to Parent (including with respect to ~~such appointments~~the conditionality thereof) in an amount sufficient, ~~(2) modify pricing, (3) terminate or reduce any commitments under~~ when added 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,~~ that is available to pay in ~~each case, so long as such amendments would not~~ cash all amounts required to 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 paid by Parent in ~~accordance~~ connection with ~~this paragraph~~ the Merger (“Alternative Financing”), and ~~the previous paragraph is~~ to obtain a new financing commitment letter (the “Alternative ~~Financing~~Commitment Letter”), fee letter and a new definitive agreement with respect thereto (the “Alternative Financing Agreement”) that provides for financing on terms not materially less favorable, in the aggregate, to Parent and in an amount that is sufficient, when added to the portion of the Financing that is available, to pay in cash all amounts required to be paid by Parent and the Surviving Corporation in connection with the Merger.~~” For purposes of~~ (c) References in this ~~Agreement, references~~ Agreement to (i) “~~Debt~~ Financing” shall include the financing contemplated by under the Commitment Letter and 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, Letter as ~~applicable) in connection with any Alternative Financing to the extent~~ permitted by this Section ~~7.18~~6.13 to be amended, ~~and~~ modified, supplemented or replaced (including, for the avoidance of doubt, any alternate financing transactions permitted hereunder), (ii) “Commitment Letter” shall include such ~~Alternative Financing shall be required to comply with the provisions of~~ documents as permitted by 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 Section 6.13 (including any ~~market flex term (if any)) less favorable (taken as a whole~~Alternative Commitment Letter) to ~~Parent than~~ be amended, modified or replaced, in each case from and after such ~~term contained in the Debt Commitment Letter as in effect on the date hereof~~ amendment, modification or replacement and (~~including the market flex provisions (if any)). Parent and Merger Sub expressly acknowledge and agree that their obligations under this~~ ii) definitive financing agreements shall be deemed to include any Alternative Financing 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 (Sealy Corp), Merger Agreement (Tempur Pedic International 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 IX~~hereof, 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 ~~advisable~~proper 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 include~~Date 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 ~~Affiliates~~control; (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 facilities~~definitive 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 any~~the “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 hereof~~Company 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, ~~that~~Parent 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 (~~iii~~E) ~~use reasonable best efforts to obtain~~any fact, ~~and when obtained~~change, ~~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 IX~~Company’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 Company~~consent, ~~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, ~~modification~~replacement, ~~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 ~~Financing~~Letters 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 facilities~~i) 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 IX~~Pre-Closing Period, Parent ~~and its Affiliates~~ shall use its reasonable best efforts to ~~take~~arrange 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 amendment~~Marketing 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 ~~Letter~~Letter 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 ~~breach~~manner 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 hereof~~Letter, ~~that~~Parent, ~~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 ~~event~~event 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 7.18~~event 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 IX~~Company Subsidiaries to, ~~Parent and its Affiliates shall~~ use reasonable best efforts to ~~take~~provide to Contributor, ~~or cause to be taken~~Raptor and their respective Subsidiaries such cooperation reasonably requested by Contributor, ~~all actions~~Raptor 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) ~~satisfy~~upon reasonable prior written notice, ~~or obtain~~ participating at reasonable times (and during regular business hours) in a ~~waiver thereof~~reasonable 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 Letter~~preparation 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 impair~~Company 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 ~~Merger~~Company 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 Financing~~or, 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 financing~~delay 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~~ Each of the ~~Effective Time or the termination of this Agreement in accordance with Article IX, Parent and its Affiliates~~ Buyer Parties 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 necessary, proper or advisable to arrange, obtain and consummate the Financing at or prior to the Closing on the terms and conditions described in the Commitment Letters, including using reasonable best efforts to (i) maintain in full force and effect the Commitment Letters, (ii) negotiate, enter into and deliver the definitive agreements with respect to the Debt Financing to be entered into at or prior to the Closing (the “Definitive Financing Agreements”) consistent with the terms and conditions contained in the Debt Commitment Letters (taking into account any “flex” provisions included in the Fee Letter), (iii) satisfy at or prior to Closing all conditions and covenants to the funding of the Financing in the Commitment Letters and the Definitive Financing Agreements applicable to the Buyer Parties and their respective Affiliates, (iv) assuming that all conditions set forth in the Commitment Letters have been satisfied, borrow on or prior to the Closing Date an amount necessary to consummate the transactions contemplated hereby on the Closing Date or (v) enforce all of its rights under the Commitment Letters and Definitive Financing Agreements including seeking specific performance of the parties thereunder. The Buyer Parties shall not, without the prior written consent of the Company, permit any amendment, supplement or modification to, or any waiver of any provision or remedy under, restate, substitute or replace, the Commitment Letters if such amendment, supplement, modification, waiver, restatement, substitution or replacement (1) would add new (or expand, amend or modify any existing) conditions to the receipt of the Financing, (2) reduces (or would reasonably ~~necessary~~ be expected to have the effect of reducing) the aggregate amount of the Financing below the Required Amount, (3) would otherwise reasonably be expected to prevent, impede, impair or ~~advisable~~delay the consummation of the transactions contemplated hereby or (4) would adversely impact the ability of any of the Buyer Parties to enforce their rights against the other parties to the Commitment Letters or the Definitive Financing Agreements; provided, that the Buyer Parties may amend the Debt Commitment Letters to ~~arrange~~ add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letters as of the date of this Agreement. As promptly as practicable following execution thereof, the Buyer Parties shall furnish to the Company a correct and ~~obtain~~ executed copy of any amendment, restatement, replacement, supplement, modification, waiver or consent of or relating to the Debt Commitment Letter and the Fee Letters and any other fee letters entered into in connection with the Debt Financing. Upon any such permitted amendment, supplement, modification, waiver or replacement of the Debt Commitment Letters in accordance with this Section 6.4(b), the terms “Debt Commitment Letters,” “Fee Letters” and “Debt Financing” shall refer to the Debt Commitment Letters as so amended, supplemented, modified, waived or replaced and the financing contemplated thereby. (b) In the event that any portion of the Debt Financing becomes unavailable, regardless of the reason therefor, the Buyer Parties will (i) use their respective reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, alternative debt financing (as applicable, in an amount sufficient to consummate the transactions contemplated hereby) from the same or other sources and on terms and conditions (taking into account any “flex” provisions included in the Fee Letter) in an amount sufficient for satisfaction of all of the Buyer Parties’ payment obligations under this Agreement due on or prior to the Closing or are not materially less favorable to the Buyer Parties (as determined by Parent in its sole discretion) than such unavailable Debt Financing (the “Alternative Financing”), with it being understood and agreed that if the Buyer Parties proceed with any Alternative Financing, the Buyer Parties shall be subject to the same obligations with respect to such Alternative Financing as set forth in this Agreement with respect to the Debt Financing, and (ii) promptly notify the Company of such unavailability. For the purposes of this Agreement, (i) the term “Debt Financing” shall be deemed to include the Debt Financing and any such Alternative Financing, (ii) the term “Debt Commitment Letters” and the “Fee Letter” shall include the Debt Commitment Letter and any Fee Letter, as applicable, shall be deemed to include any commitment letter (or similar agreement) and any fee letter, respectively, with respect to any Alternative Financing arranged in compliance herewith (and any Debt Commitment Letters or Fee Letters remaining in effect at the time in question) and (iii) the “Definitive Financing Agreements” shall include the definitive documentation relating to the debt financing contemplated by the Debt Commitment Letter and any such Alternative Financing. Upon the Company’s request, the Buyer Parties shall keep the Company informed, in reasonable detail, of the status of their efforts to arrange the Debt Financing. Without limiting the generality of the foregoing, the Buyer Parties shall provide the Company with prompt written notice of (A) any breach or default (or any event that, with or without notice, passage of time or both, would give rise to any breach or default) by any party to any Commitment Letter or the Definitive Financing Agreements of which the Buyer Parties become aware that would adversely affect the ability or likelihood of the Buyer Parties to timely consummate the transactions contemplated hereby at the Closing, (B) the termination of the Debt Commitment Letter, (C) the occurrence of an event or development that would adversely impact the ability of the Buyer Parties to obtain all or any portion of the Debt Financing on or (D) any condition precedent to the Debt Financing that any of the Buyer Parties has any reason to believe will not be satisfied at or prior to the Closing Date. ~~Such actions~~ Notwithstanding anything to the contrary herein, no Buyer Party shall ~~include, but not be limited to, using reasonable best efforts to: (i) comply with and maintain in effect the Debt Commitment Letter (~~have an obligation to disclose any information pursuant to this Agreement that is subject to ~~any amendment, supplement, replacement, substitution, termination~~ attorney-client 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)similar legal privilege. (bc) From the date of this Agreement until the earlier of the ~~Effective Time or~~ Closing Date and the valid termination of this Agreement in accordance with Article IXVIII, ~~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~~ shall use 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~~reasonable best efforts (or, in the ~~judgement~~ case of clause (iv) below, shall), and shall cause its Subsidiaries to, and the Company shall cause its and its Subsidiaries’ Representatives to, at Parent’s sole expense, provide such reasonable cooperation as is customary and reasonably requested by Parent ~~upon advice of outside counsel, is subject to attorney-client privilege or which would be~~ in ~~violation of any confidentiality obligation. (c) In~~ connection with the ~~event all or any portion~~ arrangement of the Debt Financing ~~becomes unavailable on~~ (it being understood that, solely for purposes of this Section 6.5(c), the terms “Debt Financing” and ~~conditions~~ “Financing” shall be deemed to include any high yield or other financing incurred in lieu of or in addition to any facility 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 1Letter), ~~then Parent and its Affiliates shall~~ including by: (i) ~~promptly notify~~ participating (and causing senior management and Representatives, with appropriate seniority and expertise, of the Company ~~thereof~~ Group to participate) in a reasonable number of meetings and ~~the reasons therefor~~presentations with actual or prospective lenders, ~~(ii) use reasonable best efforts to obtain alternative financing from the same or alternative Debt Financing Entities on terms~~ road shows and ~~conditions~~due diligence sessions, ~~taken as a whole~~drafting sessions and sessions with rating agencies, 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 and otherwise reasonably cooperating with the ~~portion~~ marketing and due diligence efforts for any of the Debt Financing ~~that remains available~~ (which, at the Company’s option, may be attended via teleconference or virtual meeting platforms) upon reasonable advance notice, during normal business hours and ~~any cash on hand~~at reasonable times and locations to be mutually agreed; (ii) providing reasonable assistance to Parent and the Debt Financing Sources with the timely preparation of customary (A) rating agency presentations, ~~available lines of credit (including under Borrower’s existing revolving credit~~ bank information memoranda, confidential information memoranda, lender presentations and ~~securitization facilities) and other sources of immediately available funds~~similar documents, ~~is at least equal~~ in each case, solely with respect to information relating to the ~~Required Amount, as promptly as practicable following the occurrence of such event~~Company Group, and as required in connection with the Debt Financing and customarily used to arrange transactions similar to the Debt Financing by companies of a comparable size in a comparable industry as the Company; and (~~iii~~B) ~~use reasonable best efforts to obtain,~~ pro forma financial statements and ~~when obtained, provide~~ forecasts of financial statements 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) 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 Group 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 extent required by the Debt Commitment Letter or Securities and Exchange Commission rules and regulations or necessary or reasonably requested by Parent to be included in any ~~Debt Financing Document if such amendment, modification, supplement, restatement, assignment, substitution~~ marketing materials or ~~replacement would (A) impose additional conditions precedent~~ offering documents 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 type 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 may, without the prior written consent of the Company, amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter, ~~including~~ it being understood that the Buyer Parties shall be responsible for (1i) ~~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 determination of the ~~Debt Financing and/or (4) increase the~~ proposed aggregate amount of the Debt Financing, the interest rates thereunder or the fees and expenses relating thereto; (ii) the determination of any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in ~~each case~~connection with the Debt Financing; or (iii) any financial information related to Parent or any of its Subsidiaries or any adjustments whether or not directly related to the acquisition of the Company Group; (iii) to the extent required by the Definitive Financing Agreements, ~~so long~~ reasonably assisting in connection with facilitating the pledging of collateral, effective no earlier than, and conditioned upon the occurrence of, the Closing; (iv) furnishing the Buyer Parties and the Debt Financing Sources, as promptly as practicable, with the Required Information that is Compliant; (v) cooperating with the Buyer Parties to obtain customary and reasonable corporate and facilities ratings, and, solely to the extent required by the Definitive Financing Agreements, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, non-imputation affidavits, surveys and title insurance as reasonably requested by the Debt Financing Sources; (vi) providing customary documents reasonably requested by Parent relating to the repayment of the Repaid Indebtedness and the release of related guarantees and Liens, including (A) delivering notices of prepayment (or obtaining waivers thereof in the applicable Payoff Letters) within the time periods required by the relevant agreements governing Indebtedness and obtaining the Payoff Letters, Lien terminations and instruments of discharge to be delivered at the Closing, (B) giving any other necessary notices to allow for the payoff, discharge and termination in full at the Closing of all Repaid Indebtedness and (C) any other cooperation reasonably requested by Parent in connection with the repayment or other retirement of any Repaid Indebtedness and the release and termination of any and all related Liens on or prior to the Closing Date; (vii) to the extent required by the Debt Commitment Letter, providing customary authorization letters with respect to the bank information memoranda (provided that all such ~~amendments would not~~ authorization letters and materials related thereto (A) shall include or otherwise expressly incorporate language that exculpates the Company Group, its Affiliates and its and their Representatives from any liability in connection with the unauthorized use or misuse by the recipients thereof of all such memoranda and other materials and documents and information set forth therein; and (B) shall have been previously identified to, and provided to the Company and the Company and its Representatives shall have been given reasonable opportunity to review and comment thereon); (viii) reasonably assisting the Buyer Parties with the preparation, and, subject to the occurrence of Closing, the execution and delivery of any Definitive Financing Agreements by furnishing information relating to the Company Group and their respective businesses to be included in the schedules thereto and customary officer’s certificates (including a customary solvency certificate from the chief financial officer of the Company in the form attached to the Debt Commitment Letter, but solely to the extent such officer remains in such capacity with the Surviving Corporation immediately after the Closing) on terms satisfactory to Parent as may be reasonably ~~expected~~ required by Parent (provided that no obligation of the Company under any such document or agreement shall be effective until the Closing); (ix) ensuring that the Debt Financing benefits from existing material lending relationships of the Company Group to ~~result~~ the extent practicable and reasonably requested by Parent; (x) taking all reasonable and customary corporate, limited liability company or similar actions necessary to permit the consummation of the Debt Financing (provided that no obligation of the Company to take such action shall be effective until the Closing); (xi) promptly (but in ~~an Adverse Effect~~ no event later than four (4) Business Days prior to the Closing Date) all documentation and other information relating to the Company and its Subsidiaries required by bank regulatory authorities under applicable “know-your-customer”, anti-money laundering rules and regulations, including the PATRIOT Act, reasonably requested by Parent in writing, at least ten (10) days prior to the Closing Date; and (xii) (A) executing and delivering customary management representation letters to their independent auditors and (B) causing their independent auditors and any other auditor to the extent that financial statements audited or reviewed by such auditors are or would be included in any offering memorandum relating to any such Debt Financing to (x) provide drafts and executed versions of customary auditor comfort letters (including “negative assurance” comfort and change period comfort) with respect to historical financial information relating to the Company Group as reasonably requested by Buyer Parties or as necessary or customary for financings similar to the Debt Financing (including any offering or private placement of debt securities pursuant to Rule 144A) and (y) attend a reasonable number of accounting due diligence sessions and drafting sessions at reasonable times and places. (d) All non-public or otherwise confidential information regarding the Company, its Subsidiaries and their Affiliates obtained by the Buyer Parties or their Representatives pursuant to this Section 6.5 shall be kept confidential in accordance with the Confidentiality Agreements, including any joinder or other agreement entered into in connection therewith; provided, that notwithstanding the Confidentiality Agreements or any other provision of this Agreement, the Buyer Parties and their respective Affiliates and Representatives shall be permitted to disclose any information provided by, or on behalf of, the Company or its Subsidiaries to any actual or potential debt financing sources, subject to customary confidentiality undertakings by such actual and potential debt financing sources. The Company hereby consents to the use of the logos of the Company and its Subsidiaries in connection with the Debt Financing~~. Upon request~~ ; provided, that such logos shall be used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Company or its Subsidiaries or their reputation or goodwill. (e) Notwithstanding anything herein to the contrary, (i) none of the Company, ~~Parent shall keep the Company informed in reasonable detail~~ its Subsidiaries or their Affiliates or any persons who are directors or managers of the ~~status~~ Company, any of ~~Parent’s efforts to arrange the Debt Financing. Any alternative, substitute~~ its Subsidiaries or ~~replacement debt financing obtained by Parent in accordance with this paragraph and the previous paragraph is the “Alternative Financing.” For purposes~~ any 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 their Affiliates shall be required to ~~comply~~ pass resolutions or consents to approve or authorize the execution of the Debt Financing or to execute, deliver or enter into, or perform any agreement, certificate, arrangement, document or instrument, including any Definitive Financing Agreements, with ~~the provisions of this Agreement~~ respect to the ~~same extent as the~~ Debt ~~Financing. Notwithstanding anything~~ Financing that will be effective prior to the ~~contrary contained in this Agreement~~Closing (other than any customary authorization letters and management representation letters), in (ii) no ~~event shall Parent~~ obligation of the Company, its Subsidiaries or ~~its~~ their Affiliates ~~be required to pay any fees~~ or any ~~interest rates applicable~~ of their respective Representatives undertaken pursuant to the ~~Alternative Financing in excess of those contemplated by the Debt Commitment Letter as in effect on the date hereof~~ foregoing shall be effective until Closing, and (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.iii

Appears in 2 contracts

Sources: Merger Agreement (R1 RCM Inc. /DE), Merger Agreement (R1 RCM Inc. /DE)

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 include~~Date on the terms and conditions described in the Debt Commitment Letter (as the same may be amended, ~~but not be limited to~~modified 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 hereof~~part of Purchaser or any of its Affiliates to commence or thereafter to commence any litigation, arbitration, action or other adjudicatory or legal proceeding against any Debt Financing Source); and (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 ~~event~~event (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 applicable~~in part) ~~in connection with any Alternative Financing to the extent permitted~~ by this Section ~~7.18~~8.08, 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 financing~~Closing.

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 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) below~~Section 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 Affiliates~~Merger Sub that are within their control; (iii) ~~negotiate~~obtain, ~~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 conditions~~not materially less favorable, ~~taken as a whole~~in 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 facilities~~Parent) ~~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 Conditions~~conditions 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 (E~~including 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 ~~Financing~~Financing 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 ~~Company~~conditionality 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 ~~Merger~~Company Shareholders under the CCC. (e) At the Closing, ~~are not subject to~~Parent shall provide to Fenwick & West LLP, counsel to the Company, Federal Reserve Wire Network reference numbers reflecting the funding to Parent of amounts dispersed to Parent (or ~~conditioned on,~~ one or more of Parent’s ~~or Merger Sub’s receipt of financing~~Subsidiaries) pursuant to the Financing.

Appears in 2 contracts

Sources: Merger Agreement (Sonicwall Inc), Merger Agreement (Sonicwall 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 IX~~Closing, 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 ~~or prior~~ terms and conditions no less favorable 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~~ Merger Sub than those described in or contemplated by the Commitment Letters 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 any~~i) ~~related thereto~~satisfy 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 Letters and the Fee 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~~ related thereto) that are within its control, including the payment of any commitment, engagement or placement fees required as a condition 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~~ maintain in effect the Commitment Letters (subject to ~~obtain alternative financing from the same or alternative Debt Financing Entities on terms and conditions, taken as a whole, no less favorable~~ Parent’s right 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 Commitment Letters in accordance herewith), comply with its obligations pursuant to the Commitment Letters, diligently enforce their rights under the Commitment Letters and, with respect to the Debt Commitment Letter, negotiate and enter into definitive agreements with respect thereto on terms and conditions no less favorable to Parent and Merger Sub than those described in or contemplated in the Debt Commitment Letter and the Fee Letter (including any “market flex” provisions contained in the Fee Letter), (iii) consummate the Financing at or prior to the Closing, (iv) ensure the participation by a Representative of Parent and Merger Sub in, and assistance by Representatives of Parent and Merger Sub with, the preparation of rating agency presentations, meetings with ratings agencies and meetings with prospective lenders and (v) comply with Merger Sub’s obligations under the Debt Commitment Letter and the Fee Letter. If funds in the amounts and on the terms set forth in a Debt Commitment Letter become unavailable to Parent or Merger Sub on the terms and conditions (including any “market flex” provisions contained in the Fee Letter) contemplated in the Debt ~~Financing Document~~ 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 ~~amendment~~fact and shall use their reasonable best efforts to obtain as promptly as practicable alternative debt financing (the “Alternative Financing”) in amounts, ~~modification~~when added with the Equity Financing, ~~supplement~~sufficient to consummate the Transactions, ~~restatement~~including, ~~assignment~~for 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~~ Debt 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 Conditions~~conditions to obtaining the Debt 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 ~~may, without the prior written consent of the Company, amend, modify, supplement, restate, assign, substitute or replace~~ and Merger Sub shall not be required to accept any Alternative Financing having terms and conditions (including “market flex” provisions) less favorable to Parent and Merger Sub than those in the Debt Commitment Letter and the Fee Letter; provided, ~~including (1)~~ further, that if Parent and Merger Sub proceed with such Alternative Financing, Parent and Merger Sub shall be subject 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~~Alternative Financing as set forth in this Section 6.09(a) with respect to the Financing, and all references in this Agreement to the “Debt Financing”, “Financing”, “Debt Commitment Letter”, “Fee Letter” and “Commitment Letters” (2and other like terms in this Agreement) ~~modify pricing~~shall be deemed to also include such Alternative Financing, ~~(3) terminate~~ as applicable. In the event all conditions applicable to the Commitment Letters have been satisfied or ~~reduce any commitments under~~ waived, Parent shall cause the Fund to fund the Equity Financing and shall use its reasonable best efforts to cause the Persons providing the Debt Financing ~~in order~~ to ~~obtain alternative sources of debt financing in lieu of all or a portion of the~~ fund such Debt Financing ~~and/or~~ required to consummate the Transactions on the Closing Date. (4b) ~~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 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 ~~Parent~~any breach, default, termination or repudiation by any party to any of the Commitment Letters or definitive agreements related to the Financing of which Parent or Merger Sub becomes aware, (ii) of the receipt of (A) any written notice or (B) other written communication, in each case from any Lender Related Party with respect to any (1) actual breach, default, termination or repudiation by any party to any of the Commitment Letters or definitive agreements related to the Financing of any provisions of the Commitment Letters or definitive agreements related to the Financing of which Parent or Merger Sub becomes aware or (2) material dispute or disagreement between or among any parties to the Commitment Letters or definitive agreements of which Parent becomes aware related to the Financing with respect to the obligation to fund any of the Financing or the amount of the Financing to be funded at the Closing and (iii) if at any time for any reason Parent believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions, in the manner or from the sources contemplated by the Commitment Letters or definitive agreements related to the Financing such that it would not have amounts sufficient to consummate the Merger and the other Transactions, including payment of the Required Amount. As soon as reasonably practicable, but in any event within forty-eight (48) hours of the date that the Company delivers to Parent a written request, Parent shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause (i), (ii) or (iii) of the immediately preceding sentence. Parent shall not replace, amend, supplement, modify or waive the Debt Commitment Letter or any provision of any fee letter relating to the Debt 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 Debt 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 aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing or similar fees) such that Parent would not have amounts sufficient to consummate the Merger and the other Transactions, including payment of the Required Amount, (y) amends the conditions precedent to the Debt Financing in a manner that adds additional conditions precedent to the Debt Financing~~. Any alternative~~, ~~substitute~~ or ~~replacement debt financing obtained by~~ otherwise expands, amends or modifies any of the conditions precedent to the availability of the Debt Financing, in each case, in a manner that would reasonably be expected to (1) make the funding of the Debt Financing (or the satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (2) materially delay or prevent the Closing or (z) adversely impacts the ability of Parent or Merger Sub to enforce its rights against the other parties to the Debt Commitment Letter (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 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”~~Letter to add lenders, ~~“Debt Fee Letters”~~lead arrangers, ~~“Debt Financing Documents”~~bookrunners, ~~“Debt Financing Entities”, “Debt Financing Sources”,~~ syndication agents or ~~“Financing” shall include the documents~~ similar entities (or ~~commitments or financing sources, as applicable~~titles with respect to such entities) 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 that have not executed the Debt Commitment Letter as ~~in effect on~~ of the date ~~hereof~~ of this Agreement (~~including~~ it being understood that the ~~market flex provisions~~ aggregate commitments of the lenders party to the Debt Commitment Letter prior to such amendment, supplement or modification may be reduced in the amount of such additional party’s commitments) (~~if any)) or agree to any term (including any market flex term (if any)) less favorable (taken~~ provided that, except as ~~a whole) to Parent than such term contained~~ provided for in the Debt Commitment Letter with respect to Additional Committing Lenders (as defined in ~~effect on~~ the ~~date hereof~~ Debt Commitment Letter), no such addition shall relieve the original Committed Lenders of their obligations under the Debt Commitment Letter prior to the funding of the Debt Financing). Parent shall promptly provide to the Company true and complete copies of any commitment letter and fee letter (which, in the case of a fee letter, may redact Permissible Redacted Terms) associated with a replacement Debt Financing or Alternative Financing as well as any amendment, supplement, modification or waiver of any Debt Commitment Letter or any related fee letter (which, in the case of a fee letter, may redact Permissible Redacted Terms), that is permitted hereunder. (c) Parent shall not replace, amend, supplement, modify or waive or agree to replace, amend, supplement, modify or waive (in any case whether by action or inaction), any term of the Equity Commitment Letter without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed). Parent shall promptly (and in any event within one (1) Business Day) notify the Company of (i) the expiration or termination (or attempted or purported termination, whether or not valid) of the Equity Commitment Letter or (ii) any refusal by the Fund to provide the full financing contemplated by the Equity Commitment Letter. (d) 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(d)), such cooperation as is customary and reasonably requested by Parent in connection with the arrangement of the Debt Financing or any customary high-yield non-convertible bonds being issued in lieu of all or any portion of the Debt Financing, including by: (i) assisting in preparation for and participating (including causing the ~~market flex provisions~~ Company’s and Company Subsidiaries’ management teams, with appropriate seniority and expertise to participate) in a reasonable number of investor and lender meetings (~~if any~~including a reasonable and limited number of customary one on one meetings and calls that are requested in advance with or by the parties acting as lead arrangers, bookrunners or agents for, and prospective lenders and purchasers of, the Debt Financing)). , lender due diligence presentations, drafting sessions, road shows and presentations, including sessions with rating agencies in connection with the Debt Financing or any customary high-yield non-convertible bonds being issued in lieu of all or any portion of the Debt Financing at reasonable times and locations mutually agreed, and assisting Parent in obtaining ratings in connection with the Debt Financing or any customary high-yield non-convertible bonds being issued in lieu of all or any portion of the Debt Financing; (ii) assisting Parent, Merger Sub and the Lender Related Parties with the preparation by Parent, Merger Sub and the Lender Related Parties of materials for rating agency presentations, lender presentations, high-yield road show presentations and offering memoranda, bridge teasers, private placement memoranda, bank information memoranda and similar marketing documents required in connection with the Debt Financing or any customary high-yield non-convertible bonds being issued in lieu of all or any portion of the Debt Financing; provided that (i) the Company’s obligation to provide information for such materials shall be limited to information about the Company and the Company Subsidiaries and (ii) Parent and Merger Sub ~~expressly acknowledge and agree that their obligations under this Agreement~~shall be solely responsible for, the preparation of pro forma financial information, including ~~their obligations~~ pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to ~~consummate~~ be incorporated into any pro forma financial information (collectively, the ~~Offer~~ “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 ~~Merger~~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, ~~are not subject to~~other definitive financing documents for the Debt Financing or any customary high-yield non-convertible bonds being issued in lieu of all or any portion of the Debt Financing, or other certificates or documents and back up therefor and for legal opinions as may be reasonably requested by Parent (including (x) solely to the extent such Person has been appointed as chief financial officer or treasurer (or other comparable officer) of the Borrower (as defined in the Debt Commitment Letter) on the Closing Date, executing and delivering a certificate of the chief financial officer or treasurer (or other comparable officer) of the Borrower substantially in the form attached as Annex I to Exhibit E to the Debt Commitment Letter certifying the solvency, after giving effect to the Transactions, of the Borrower and its subsidiaries on a consolidated basis and (y) any certificate or other document reasonably requested by Parent as backup for legal opinions to be provided in connection with the transactions contemplated by Section 6.12)) and 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, (B) the effectiveness thereof shall be conditioned onupon, ~~Parent~~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(d)(vi) below, (2) the representation letters required by the Company’s auditors in connection with the delivery of “comfort letters” set forth in Section 6.09(d)(ix) below, (3) the prepayment, termination or ~~Merger Sub’s receipt~~ redemption notices set forth in Section 6.09(d)(v) below, (4) a customary solicitation agent agreement in connection with any consent solicitation or change of ~~financing.~~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, s

Appears in 2 contracts

Sources: Agreement and Plan of Merger (Anixter International Inc), Agreement and Plan of Merger (Anixter International Inc)

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 IX~~Seller), ~~Parent and its Affiliates shall use reasonable best efforts~~ to ~~take~~provide, 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, that~~amount 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 funds~~agreement, ~~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 Financing~~Letter”); 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 ~~Company~~Real Estate Purchase Price. Upon receiving such written request, ~~amend~~PropCo Buyer shall obtain a Debt Commitment Letter within fifteen (15) Business Days of PropCo Buyer’s receipt of such written request. The PropCo Buyer shall promptly after receipt of the Debt Commitment Letter provide to the Seller true, ~~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 and~~committed 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 financing~~be 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~~ 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 IX~~(including Section 4.13), ~~Parent and its Affiliates~~ Investor shall use its reasonable best efforts to ~~take~~arrange for the Company to obtain the proceeds of the Debt Financing on the terms and conditions (including the flex provisions) described in the Debt Financing Commitments and any related Fee Letter and Engagement Letter, ~~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 the Debt ~~Commitment Letter (~~Financing Commitments in accordance with the terms and subject to ~~any amendment~~the conditions thereof, ~~supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below);~~ (ii) ~~satisfy, or obtain a waiver thereof,~~ assist in the satisfaction on a timely basis of all ~~Financing Conditions~~ conditions applicable to the ~~extent within~~ Company (as assignee of Investor’s rights and obligations under the ~~control of Parent and its Affiliates; (iii) negotiate, execute and deliver~~ Debt Financing ~~Documents to~~ Commitments) in obtaining the ~~extent required to pay~~ Debt Financing at the ~~Required Amount (after taking into account any cash on hand, available lines of credit~~ Closing set forth therein (including ~~under Borrower’s existing revolving credit and securitization facilities) and other sources of immediately available funds), which shall reflect~~ consummating the Equity Financing on 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~~ Equity Financing Commitment ~~Letter delivered~~ at or prior to ~~the Company on the date hereof;~~ Closing), and (iviii) ~~in the event that the Offer Conditions have been satisfied or waived or, upon funding would be satisfied, consummate~~ negotiate definitive agreements with respect to the Debt Financing on the terms and conditions (including the flex provisions) contemplated by ~~instructing~~ the Debt Financing ~~Sources~~ Commitments and related Fee Letter (provided that Investor shall provide copies thereof to ~~fund~~ Seller on a current basis and consider in good faith any changes or comments thereto reasonably proposed by Seller and otherwise keep Seller reasonably informed on a current basis of the status of its efforts to arrange the Debt Financing ~~in accordance with the Debt Commitment Letter,~~ and ~~enforcing Parent’s rights under the Debt Commitment Letter~~ afford Seller and the ~~definitive agreements~~ Company the opportunity to attend and participate in any scheduled meetings or negotiations relating to the Debt Financing). . Investor shall not, and shall not agree with Guarantor to, enter into any amendment, supplement or other modification of, or waive any of its rights under, the Equity Financing Commitment. Investor may (bi) ~~From~~ amend, replace or modify the ~~date~~ Debt Financing Commitments and any related Fee Letter and Engagement Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities or (ii) otherwise amend, replace or modify, or consent to any waiver of any provision or remedy under, the Debt Financing Commitments, other than any amendment, replacement, modification, consent or waiver set forth in Schedule 4.12, each of which shall require the prior written consent of Seller, which, upon request, shall be promptly given or denied. For the avoidance of doubt, nothing contained herein shall prevent Investor from reallocating the Debt Financing among the ABL Facility (as defined in the Debt Financing Commitment) and the Secured Interim Facility (as defined in the Debt Financing Commitment), in each case in accordance with the terms of the Debt Financing Commitment, or reducing the total amount of funds available under the Debt Financing, provided that in either case the representations and warranties set forth in the last sentence of Section 3.6 remain true and correct. Investor shall obtain the Equity Financing contemplated by the Equity Financing Commitment upon satisfaction or waiver of the conditions to closing in Section 6.2 (other than those conditions that by their nature will not be satisfied until the Closing and subject to and in accordance with the terms of the Equity Financing Commitment). Subject to the terms and conditions of this Agreement 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(including Section 4.13), 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 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~~ Investor shall ~~(i)~~ promptly notify ~~the Company thereof~~ Seller and ~~the reasons therefor, (ii)~~ shall use its reasonable best efforts to ~~obtain~~ arrange for alternative financing from alternative sources (1) in an amount such that the ~~same or alternative Debt Financing Entities on terms~~ aggregate funds that would be available to the Company at the Closing will be sufficient to pay all amounts contemplated by Section 1.3(b) of this Agreement to be paid by it and ~~conditions~~to perform its obligations hereunder, (2) with conditions to closing and funding of which are not, when taken as a whole, ~~no less favorable to Parent~~ more onerous 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 eventCommitments, and (~~iii~~3) 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 which shall not (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 absent the prior written consent of ~~the Company, Parent~~ Seller) include terms that would require Seller’s consent pursuant to Schedule 4.12. Investor shall promptly (and ~~its Affiliates~~ on a current basis) deliver to Seller true and complete copies of all drafts of any alternative financing commitments (and consider in good faith any changes or comments thereto reasonably proposed by Seller) and all final agreements pursuant to which any such alternative source shall ~~not amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter or~~ have committed to provide Investor with 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, (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~~Section 4.12, Section 3.6 and Section 4.13, references to “Debt Financing” shall include the financing contemplated by ~~any Alternative~~ the Debt Financing Commitments as permitted by this Section 4.12 to be amended, modified or replaced and references to “Debt ~~Commitment Letter~~Financing Commitments”, “~~Debt~~ Fee ~~Letters”,~~ Letter” and “~~Debt Financing Documents”, “Debt Financing Entities”, “Debt Financing Sources”, or “Financing~~Engagement 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 ~~7.18~~4.12 to be amended, modified or replaced, in each case from and after such amendment, modification or replacement. (b) Nothing contained in this Agreement or otherwise shall require, and ~~such Alternative~~ in no event shall the reasonable best efforts of Investor be deemed or construed to require, Investor to bring any enforcement action against any source of the Financing to enforce its rights under the Financing Commitments, except that (i) Investor shall ~~be required~~ enforce, including by bringing suit for specific performance, the Equity Financing Commitment solely if Seller seeks and is granted a decree of specific performance of the obligations pursuant to ~~comply with~~ the ~~provisions~~ terms of this Agreement to cause the ~~same extent as~~ Equity Financing to be funded to fund 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 Investment and ~~Merger Sub expressly acknowledge and agree that their obligations under this Agreement, including their obligations~~ to consummate the ~~Offer~~ Investment after all conditions to the granting therefor set forth in Section 10.3(b) have been satisfied and (ii) following a written request by Seller, Investor shall use its reasonable best efforts to enforce (including by litigation) its rights under the Debt Financing Commitments to cause the Financing Sources thereunder to, subject to the terms and conditions of the Debt Financing Commitments and the ~~Merger~~satisfaction or waiver of the conditions in ARTICLE VI hereof, ~~are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt~~ fund the applicable portion of ~~financing~~the Debt Financing at the Closing.

Appears in 2 contracts

Sources: Investment Agreement (Unistrut International Holdings, LLC), Investment Agreement (Tyco International LTD)

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 IX~~Closing, 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 any~~i) ~~related thereto~~satisfy 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 Borrower~~Parent’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 ~~amendment~~fact and shall use their reasonable best efforts to obtain as promptly as practicable alternative debt financing (the “Alternative Financing”) in amounts, ~~modification~~when added to any Financing remaining available to Parent, ~~supplement~~sufficient to consummate the Transactions, ~~restatement~~including, ~~assignment~~for 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 Conditions~~conditions 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 ~~may~~and Merger Sub shall not be required to accept any Alternative Financing having terms and conditions (including “market flex” provisions) less favorable to Parent and Merger Sub than those in the Commitment Letter and the Fee Letter; provided, ~~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, (2~~Alternative 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 case~~this 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 ~~Parent~~any 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 “~~Financing~~comfort 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 applicable~~4) 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 ~~7.18~~6.09(c), no liability shall be imposed on the Company or any Company Subsidiary or any of their respective officers or employees involved prior to the Closing Date; (iv) providing Parent and the Lender Related Parties promptly, and ~~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 ~~Merger~~CDD 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~~ 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 IX~~Merger, 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 Date~~Company 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 Letter~~Financing, 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 information~~contrary 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 hereof~~terms and conditions set forth therein, ~~that~~in 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 ~~event~~event 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 ~~obtain~~Purchaser 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 fees~~the Commitment Letter, ~~pricing terms,~~ taking into account any “market flex” provisions ~~(if any~~thereof) 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 IX~~its 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 Financing~~fee 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 facilities~~successful 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 Agreement~~the 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 financing~~transactions contemplated by this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Wellpoint, Inc), Merger Agreement (Amerigroup Corp)

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 IX~~this 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 or~~Financing 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 IX~~other 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 information~~investing, ~~the disclosure of which~~as 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 hand~~indebtedness 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 facilities~~its subsidiaries required to be repaid, redeemed, retired, canceled, terminated or otherwise satisfied in connection with the Merger). (iv) As of the date of this Agreement, the Debt Financing Commitments are in full force and ~~other sources~~ effect and constitute valid and binding obligations of ~~immediately available funds~~Parent and any of its affiliates party thereto and, ~~is at least equal~~ to the ~~Required Amount~~knowledge of Parent, each other party thereto, enforceable in accordance with their terms against Parent and any of its affiliates party thereto and, to the knowledge of Parent, each other party thereto (except as such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or hereafter in effect, relating to creditors’ rights generally, and general equitable principles) and, as ~~promptly as practicable following~~ of the ~~occurrence~~ date of ~~such event~~this Agreement, ~~and (iii) use reasonable best efforts to obtain~~no event has occurred that, ~~and when obtained~~with or without notice, ~~provide the Company with a true and complete copy of~~lapse 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 fees~~or 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 sources~~means that, as ~~applicable~~of any date of determination (a) the amount of the “fair saleable value” of the assets of such person will, as of such date, exceed (i) the 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 7.18~~insolvency 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 to~~including 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 on~~a combination thereof, ~~Parent’s or Merger Sub’s receipt of financing~~to 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~~ 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 ~~take~~which 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 advisable~~the 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 hand~~respect 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 funds~~than 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 amendment~~be 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) negotiate~~Gold, ~~execute and deliver Debt Financing Documents to the extent required to pay the Required Amount (after taking into account any cash on hand~~in 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 1~~Consent 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 (i~~Subsidiaries) ~~promptly notify the Company thereof and the reasons therefor~~to, ~~(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 conditions~~sources, ~~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, that~~aggregate 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 funds~~liquidity, ~~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 ~~event~~Gold 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 Merger~~Section ‎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 Agreement~~Mercury, ~~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 the date ~~of this Agreement~~ hereof until the ~~earlier of the Effective Time or the termination of this Agreement in accordance with Article IX~~Closing Date, Parent and ~~its Affiliates~~ Merger Sub shall use commercially reasonable ~~best~~ efforts to ~~take,~~ take (or cause to be taken, ) all actions, and ~~use reasonable best efforts to do,~~ do (or cause to be done, ) all things ~~reasonably necessary~~ necessary, proper or ~~advisable,~~ advisable to arrange and obtain the Debt Financing and the proceeds therefrom on the terms and conditions described in the Debt Commitment Letter, including using their commercially reasonable efforts to ~~consummate~~ (i) negotiate and execute the definitive agreements with respect to the Debt Financing on (the “Definitive Debt Financing Agreements”) at or prior to the date that the Closing ~~Date. Such actions~~ is require to be effected in accordance with Section 2.02; provided, that such Definitive Debt Financing Agreements shall ~~include, but~~ not ~~be limited to, using reasonable best efforts to: (i) comply with and maintain~~ result in ~~effect~~ any reduction of the aggregate amount 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 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 provided for in the Debt Commitment Letter (including ~~any “market flex” provisions~~ by changing the amount of fees or original issue discount contemplated by the Debt Commitment Letter) to an amount that is less than the amount sufficient to consummate the Transactions on the Closing Date; (~~if any~~ii) ~~related thereto) or~~ satisfy on ~~such other terms acceptable to Parent that would not constitute an Adverse Effect on Financing as compared to those~~ a timely basis all conditions, contingencies and requirements set forth in the Debt Commitment Letter ~~delivered to~~ and Definitive Debt Financing Agreements that are within Parent’s and Merger Sub’s control, (iii) comply on a timely basis with all material covenants and other obligations set forth in the ~~Company on the date hereof;~~ Debt Commitment Letter and Definitive Debt Financing Agreements, (iv) pay in a timely manner any commitment or other fees that are or become due and payable under or with respect to the ~~event that~~ Debt Commitment Letter and the ~~Offer Conditions have been satisfied or waived or~~Definitive Debt Financing Agreements, ~~upon funding would be satisfied, consummate~~ (v) otherwise not terminate the commitment for the Debt Financing ~~(including by instructing the Debt Financing Sources to fund the Debt Financing~~ set forth in ~~accordance with~~ the Debt Commitment Letter, subject to amendments, modifications and ~~enforcing~~ replacements permitted hereunder and (vi) subject to Section 6.16(e)(ii), if all of the conditions to Parent’s and Merger Sub’s obligations under Section 7.02 (other than those conditions that by their terms are to be satisfied at the Closing) have been satisfied, enforce its rights under the Debt Commitment Letter and the ~~definitive agreements relating to the~~ Definitive Debt ~~Financing)~~Financing Agreements. (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 contemplated by in the Debt Commitment Letter (including any applicable “flex” terms contained in the ~~flex provisions (if any)~~related fee letter) ~~(other than as a result~~ or the Definitive Debt Financing Agreements shall be withdrawn, terminated or otherwise amended or modified in any respect such that any portion of the ~~Company’s breach of~~ Debt Financing becomes unavailable 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 Sub shall promptly (and in any event within two (2) Business Days) (i) ~~promptly~~ notify the Company ~~thereof~~ of such unavailability and ~~the reasons therefor,~~ (ii) use its commercially reasonable ~~best~~ efforts to arrange and obtain alternative financing from alternative sources in an amount, which when combined with the ~~same or alternative Debt Financing Entities~~ available lines of credit, the amount of available cash of Parent and Merger Sub and other sources of available funds, is sufficient to pay all obligations of Parent and Merger Sub hereunder that are required to be paid on the Closing Date and on terms and ~~conditions~~conditions that are not, ~~taken as a whole~~in the aggregate, no less favorable to ~~Parent~~ Company (as determined in the commercially reasonable judgment of 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~~ terms contemplated by the Debt Commitment Letter ~~delivered to the Company~~ in effect on the date hereof, ~~that~~(such alternative financing, ~~when taken together with~~ “Alternative Financing”) (it being understood and agreed that no such Alternative Financing shall expand upon the ~~portion of~~ conditions precedent or contingencies in a manner that would reasonably be expected to (x) be more onerous in any material respect to those conditions contained in the Debt ~~Financing that remains available and any cash on hand~~Commitment Letter, ~~available lines of credit~~ (~~including under Borrower’s existing revolving credit and securitization facilities~~y) ~~and other sources of immediately available funds~~prevent or materially delay the Closing, ~~is at least equal~~ or (z) make the Closing 38031572.13 less likely to ~~the Required Amount~~occur), as promptly as practicable following the occurrence of such event, but, in no event later than the date Parent and ~~(iii) use reasonable best efforts~~ Merger Sub are required to ~~obtain~~consummate the Closing under this Agreement. If and to the extent that the Debt Financing is supplemented or superseded by any Alternative Financing, the terms “Debt Financing,” “Debt Commitment Letter,” and ~~when obtained~~“Definitive Debt Financing Agreements” shall each be deemed to be modified, ~~provide~~ mutatis mutandis, to also refer to such Alternative Financing and any commitments or definitive agreements with respect thereto and the ~~Company with a true~~ terms “Debt Financing Sources” and ~~complete copy of~~“Debt Source Parties” shall be deemed to be modified, ~~a new~~ mutatis mutandis, to also include the financing ~~commitment that provides~~ sources for such ~~alternative financing; provided that~~ Alternative Financing. If Parent and Merger Sub proceed with any ~~provisions~~ Alternative Financing, Parent and Merger Sub shall be subject to the same obligations with respect to such Alternative Financing as 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 this Agreement with respect to the ~~funding of such alternative financing on the Closing Date~~Debt Financing. (dc) ~~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~~ Merger Sub shall not ~~amend~~permit any amendment, ~~modify~~supplement or modification to be made to, ~~supplement~~or agree to permit any waiver of any provision or remedy under, ~~restate, assign, substitute or replace~~ the Debt Commitment Letter or ~~any~~ Definitive Debt Financing ~~Document~~ Agreements (including any amendment, supplement, modification or waiver that has the effect of changing the amount of fees to be paid or original issue discount) without the Company’s prior written consent, except that Parent and Merger Sub may amend, supplement, waive or otherwise modify the Debt Commitment Letter or Definitive Debt Financing Agreements (including by joining one or more additional lenders or agents as parties thereto) if such amendment, ~~modification, supplement, restatement, assignment, substitution~~ supplement or ~~replacement would~~ modification does not result in: (A) ~~impose additional conditions precedent or expand upon the conditions precedent to the funding~~ an aggregate amount of Debt Financing provided for in the Debt ~~Financing,~~ Commitment Letter or Definitive Debt Financing Agreements (~~B) reduce~~ including by changing the amount of fees or original issue discount contemplated thereby) that, when combined with the ~~Debt Financing or~~ available lines of credit, the ~~net~~ amount of available cash ~~proceeds~~ of Parent and Merger Sub and other sources of available ~~from the Debt Financing to an amount that~~ funds, 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 amount sufficient to consummate the ~~transactions contemplated by this Agreement, including the Offer and the Merger~~ Transactions; (B) any expansion or ~~(E) materially adversely impact the ability~~ imposition of ~~Parent~~ new conditions 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~~ contingencies 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~~ (x) be more onerous 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 any material respect than those conditions 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 contingencies contained in the Debt Commitment Letter as in effect on the date ~~hereof~~ hereof, (~~including~~ y) prevent or materially delay the ~~market flex provisions~~ Closing, or (~~if any)).~~ z) make the Closing less likely to occur; or (C) any amendment or modification of any such conditions or contingencies in a manner adversely affecting the ability of Parent and Merger Sub ~~expressly acknowledge~~ to consummate the transactions contemplated hereby prior to the End Date. (d) Parent and ~~agree~~ Merger Sub shall keep Company reasonably apprised (on a reasonably current basis and in reasonable detail) of material developments relating to the Debt Financing and promptly, upon written request of the Company, provide Company copies of any Definitive Debt Financing Agreements or executed commitment letters associated with an Alternative Financing. Without limiting the foregoing, Parent shall notify the Company promptly (and in any event within two (2) Business Days) if at any time prior to the Closing Date: (i) the Debt Commitment Letter expires or is terminated for any reason; (ii) Parent or Merger Sub obtains knowledge of any material breach or material default, or any threatened (in writing) material breach or material default, or any event that, with or without notice, lapse of time or both, would (or could reasonably be expected to) give rise to any default or breach, by any party to the Debt Commitment Letter or any definitive document related to the Debt Financing of any provisions of the Debt Commitment Letter or any definitive document related to the Debt Financing, or (iii) if for any reason Parent or Merger Sub believes in good faith that ~~their obligations under this Agreement~~they will not be able to obtain all or any portion of the Debt Financing (but only to the extent that such portion would reduce the amount of Debt Financing) below the amount sufficient to consummate the transactions contemplated hereunder on the terms, ~~including their~~ in the manner or from the sources contemplated by the Debt Commitment Letter or Definitive Debt Financing Agreements. (e) For the avoidance of doubt, (i) in no event shall the receipt or availability of the Debt Financing or any other funds or financing by Parent or Merger Sub be a condition to Parent’s and Merger Sub’s obligations to consummate the ~~Offer~~ transactions contemplated by this Agreement and ~~the Merger~~(ii) in no event shall Parent, ~~are not subject to~~Merger Sub or any of their respective Related Parties be required to (x) commence any litigation, arbitration or ~~conditioned on, Parent’s~~ similar proceeding or ~~Merger Sub’s receipt~~ seek specific performance against any Debt Source Party and (y) waive any term or condition of ~~financing~~this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Apex Global Brands Inc.), Merger Agreement (Apex Global Brands 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 ~~advisable~~advisable (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 to~~to 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, ~~restate~~waive, ~~assign~~assign or terminate any provision or remedy under, ~~substitute~~ or ~~replace the Debt Commitment Letter~~any 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 any~~its 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 ~~Agreement~~Agreement 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 ~~Merger~~term “PIPE Acquiror” as used in this Agreement shall be deemed to include any Person that is subscribing for Acquiror Common Stock under any Alternative Subscription Agreement. For the avoidance of 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 on~~any other amounts from the Trust Account and, ~~Parent’s or Merger Sub’s receipt of financing~~to 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 IX~~Buyer, ~~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 Affiliates~~Financing; (iii) ~~negotiate~~satisfy 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 hereof~~are 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 (~~iii~~B) ~~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 applicable~~to 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 ~~Merger~~term “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 ~~financing~~any replacement financing to be obtained after any portion of the Financing becomes unavailable as described therein.

Appears in 2 contracts

Sources: Merger Agreement (Adesa California, LLC), Merger Agreement (Adesa Inc)

Financing. ~~(a) 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~~obtain 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 include~~Closing, 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 aware~~is 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. 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 IX~~its 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 ~~taken~~paid) 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 actions~~no 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 ~~done~~unavailable. 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 include~~by 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 Company~~Commitment 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 ~~Agreement~~Section 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 Financing~~terms 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)

Appears in 2 contracts

Sources: Agreement and Plan of Merger (Herc Holdings Inc), Agreement and Plan of Merger (Herc Holdings 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 ~~any~~determined advisable by Parent, obtain the waiver of) on a timely basis all conditions to obtaining the Debt Financing within Parent’s (or its Subsidiary’s) control and to comply with all of its obligations pursuant to the Debt Commitment Letters or other definitive agreements related ~~thereto)~~ 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 1~~the applicable Debt Commitment Letters or unless concurrently replaced on a dollar-for-dollar basis by commitments subject to substantially the same conditions as those set forth in the applicable Debt Commitment Letters from other Financing Sources or from proceeds of other sources of financing or cash), ~~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 any~~thereof) 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 ~~Agreement~~Agreement (“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 Financing~~render 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 Agreement~~which 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 applicable~~e) 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 Agreement~~contrary, ~~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~~ 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 take, or cause to be taken, all 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 arrange~~ obtain and ~~obtain the Debt Financing and to~~ consummate the Debt Financing on ~~or prior to~~ the terms and conditions described in the Debt Letters, no later than the time at which the Closing ~~Date. Such actions shall include~~is required to occur pursuant to Section 2.2), ~~but not be limited to,~~ including using their reasonable best efforts ~~to:~~ to (i) ~~comply with and~~ (A) maintain in effect the Debt ~~Commitment Letter~~ Letters and comply with all of their respective obligations thereunder to the extent that the failure to comply would adversely impact the amount or timing of Debt Financing (~~subject~~ taking into account the expected timing of the Marketing Period) or the availability of the Debt Financing at Closing, (B) negotiate, enter into and, assuming all conditions to ~~any amendment~~Closing set forth in Article VIII hereof have been satisfied, ~~supplement~~deliver definitive agreements with respect to the Debt Financing reflecting the terms and conditions contained in the Debt Letters or on other terms that (1) are acceptable to Parent and Merger Sub in their sole discretion, ~~replacement, substitution, termination~~ (2) would not reasonably be expected to delay (taking into account the expected timing of the Marketing Period) or ~~other modification or waiver that is~~ adversely affect the ability of Parent and Merger Sub to consummate the transactions contemplated hereby and (3) would otherwise not be prohibited by ~~clause~~ Section 7.5(c), so that such agreements are in effect no later than the time at which the Closing is required to occur pursuant to Section 2.2 and (dC) ~~below);~~ enforce their rights under the Debt Letters to the extent that the failure to enforce would adversely impact the amount or timing of Debt Financing (taking into account the expected timing of the Marketing Period) or the availability of the Debt Financing at Closing and (ii) ~~satisfy, or obtain a waiver thereof,~~ 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~~ the expected timing of ~~credit~~ the Marketing Period) (~~including under Borrower’s existing revolving credit and securitization facilities~~or obtain the waiver of) ~~and other sources of immediately available funds), which shall reflect~~ all the ~~terms contained in~~ conditions to the Debt ~~Commitment Letter (including any “market flex” provisions (if any)~~ Financing and the definitive agreements related ~~thereto) or on such other terms acceptable~~ thereto that are applicable to Parent and Merger Sub and in their control. In the event that ~~would not constitute an Adverse Effect on Financing as compared to those~~ (x) all 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~~ Article VIII have been satisfied or waived or, upon funding ~~would~~ shall be ~~satisfied~~satisfied or waived, ~~consummate~~ and (y) the conditions to the Debt Financing have been satisfied or waived, or, upon funding shall be satisfied or waived, Parent and Merger Sub shall use their reasonable best efforts to cause the Persons providing the Debt Financing (~~including by instructing~~ the “Debt Financing ~~Sources~~ Parties”) 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)~~at Closing. (b) ~~From~~ Parent shall keep the ~~date~~ Company reasonably informed on a reasonably current basis of ~~this Agreement until~~ any material developments concerning the ~~earlier~~ status of the ~~Effective Time or~~ Debt Financing which could reasonably be expected to impact the ~~termination~~ availability of ~~this Agreement in accordance~~ the Debt Financing and upon the Company’s reasonable written request, provide the Company with ~~Article IX~~copies of executed material definitive agreements related to the Debt Financing. Without limiting the foregoing, Parent shall promptly (and ~~its Affiliates shall~~ in no event less than one Business Day) after obtaining knowledge thereof, give the Company ~~prompt~~ written notice of any ~~material breach, repudiation or threatened material~~ (i) breach or ~~repudiation~~ default by Parent, its Affiliates, any Debt Financing Party or any other party to the Debt ~~Commitment Letter~~ Letters or any definitive document related to the Debt Financing (or any event or circumstance, with or without notice, lapse of ~~which Parent~~ time, or ~~its Affiliates becomes aware; provided that none of Parent~~ both, would give rise to any breach or ~~Merger Sub shall~~ default) if such breach or default could reasonably be ~~required~~ expect to ~~disclose~~ result in a delay of, or ~~provide~~ in any ~~such information~~way limit, the ~~disclosure~~ availability of ~~which~~the Debt Financing, (ii) receipt by Parent of any written notice or other written communication from any Debt Financing Parties with respect to threatened or actual withdrawal, repudiation, expiration, intention not to fund under or termination of the Debt Letters or the Debt Financing, (iii) receipt by Parent of any written notice or other written communication from any Debt Financing Parties with respect to material dispute or disagreement between or among any parties to the Debt Letters or any definitive document related to the Debt Financing (other than ordinary course negotiations) with respect to the obligation to provide the Debt Financing or the amount of the Debt Financing to be funded at Closing, in each case, that could reasonably be expected to make the ~~judgement~~ funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or delay the availability of the Debt Financing or (iv) if for any reason Parent ~~upon advice of outside counsel,~~ in good faith believes that there is ~~subject~~ a material possibility that it will not be able 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~~ needed to consummate the Merger at the Effective Time; provided, that in no event will Parent be under any obligation to provide any information shared among Parent, Merger Sub and their professional advisors in connection with matters contemplated by the foregoing that is subject to attorney-client or other privilege if Parent and Merger Sub shall have used their reasonable best efforts to disclose such information in a way that would not waive such privilege. (c) Parent may amend, supplement, modify, terminate, assign or agree to any waiver under the Debt Letters without the prior written approval of the Company, provided that Parent shall not, without Company’s prior written consent, permit any amendment, modification, assignment, termination or material waiver to be made to, or consent to or agree to any waiver of, any provision of or remedy under the Debt Letters which would (A) reduce the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount (except as set forth in any “market flex” provisions contemplated by the fee letter)) to an amount less than the amount required to consummate the transactions contemplated hereby or (B) impose new or additional conditions to the Debt Financing or otherwise expand, amend or modify any of the conditions to the Debt Financing, in each case, in a manner that would or would reasonably be expected to (I) delay, prevent or make less likely the consummation of the Merger or the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) at the Effective Time (taking into account the expected timing of the Marketing Period) (it being understood and agreed that, in any event, Parent may amend the Debt Letters to add additional Financing Sources), (II) adversely impact the ability of Parent to enforce its rights against the Debt Financing Parties or any other parties to the Debt Letters or the definitive agreements with respect thereto or (III) adversely affect the ability of Parent to timely consummate the Merger and the other transactions contemplated hereby. In the event that new commitment letters and/or fee letters are entered into in accordance with any amendment, replacement, supplement or other modification of the Debt Letters permitted pursuant to this Section 7.5, such new commitment letters and/or fee letters shall be deemed to be a part of the “Debt Financing” and deemed to be the “Debt Letters” for all purposes of this Agreement. Parent shall promptly (and in any event no later than one Business Day) deliver to the Company true, correct and complete copies of any termination, amendment, modification or replacement of the Debt Letters. (d) If funds in the amounts set forth in the Debt Letters, or any portion thereof, become unavailable on the terms and conditions ~~contemplated by the Debt Commitment Letter~~ (including ~~the flex~~ any “market 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 to the Company on the date hereof~~Letters, ~~that, when taken together with the portion of the Debt Financing that remains available~~ Parent 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 shall, as promptly as practicable following the occurrence of such ~~event~~event (taking into account the Marketing Period), ~~and~~ (~~iii~~x) notify the Company in writing thereof, (y) use their respective reasonable best efforts to ~~obtain~~obtain substitute financing, ~~and~~ including from alternative sources, in an amount sufficient, 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 added 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~~ that is available and any cash of the ~~Debt Financing~~Company and its Subsidiaries on hand at the Closing Date and the other cash available to Parent and its Affiliates in the Escrow Account, ~~in each case, so long as such amendments would not be reasonably expected~~ to ~~result in an Adverse Effect on Financing. Upon request~~ enable Parent to consummate the payment of the ~~Company, Parent shall keep~~ Maximum Cash Amount pursuant to the ~~Company informed in reasonable detail of~~ Merger and the ~~status of Parent’s efforts to arrange the Debt Financing. Any alternative, substitute or replacement debt financing obtained by Parent~~ other transactions contemplated hereby in accordance with ~~this paragraph~~ the terms hereof (the “Substitute Financing”) and (z) use their respective reasonable best efforts to obtain new financing commitment letter(s) that provide for such Substitute Financing and, promptly after execution thereof (and, in any event, no later than one Business Day), deliver to the Company true, complete and correct copies of the new commitment letter(s) and the ~~previous paragraph~~ related fee letters; provided that in no event shall Parent and Merger Sub be obligated to accept or pursue any Substitute Financing if it is materially less favorable to Parent in any respect than the Debt Financing contemplated by the Debt Letters. The provisions of this Section 7.5 shall be applicable to the Substitute Financing and upon obtaining any commitment for any such Substitute Financing, such financing shall be deemed to be a part of the “~~Alternative~~ Debt Financing.” ~~For~~ and any commitment letter and fee letter for such Substitute Financing shall be deemed the “Debt Letters”, as applicable, for all purposes of this Agreement~~, references to “Debt Financing”~~ . 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”pay, or ~~“Financing” shall include the documents (or commitments or financing sources~~cause to be paid, 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~~ shall become due and payable, all fees and other amounts that become due and payable under the Debt ~~Financing~~Letters. Notwithstanding anything to the contrary contained ~~in this Agreement~~herein, in no event shall Parent and Merger Sub be required pursuant to this Agreement to agree to pay to the Debt Financing Parties providing the Debt Financing any additional fees or ~~its Affiliates~~ to increase any interest rates or original issue discounts applicable to the Debt Financing, except as expressly required pursuant to the Debt Letters in existence as of the date hereof. The Company acknowledges and agrees that Parent and Merger Sub shall not be required to ~~pay any fees or any interest rates applicable~~ consummate the Debt Financing until the final day of the Marketing Period. (e) Notwithstanding anything contained in this Agreement 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)). contrary, Parent and Merger Sub expressly acknowledge and agree that ~~their obligations under this Agreement, including their~~ neither Parent’s nor Merger Sub’s obligations to consummate the ~~Offer~~ transactions contemplated by this Agreement are in any manner conditioned upon Parent or Merger Sub obtaining the Debt Financing, any Substitute Financing or any other financing. (f) Prior to the Closing, the Company and its Subsidiaries shall, and shall use their reasonable best efforts to cause their respective Representatives, including legal and accounting, to provide, as promptly as reasonably practicable, to Parent and Merger Sub all cooperation as may be reasonably requested by Parent and Merger Sub in connection with arranging, obtaining and syndicating the ~~Merger~~Debt Financing (including, ~~are not~~ for the avoidance of doubt, consummating the offering of the “Notes” as contemplated by the Debt Commitment Letter (the “New Notes”)) and causing the conditions in the Debt Letters to be satisfied, including, subject toto the limitations set forth in the definition of Required Information: (i) preparing and furnishing Parent, Merger Sub and their Financing Sources as promptly as practicable all Required Information and all other financial and other pertinent information and disclosures regarding the Company and its Subsidiaries (including their businesses, operations, financial projections and prospects) as may be reasonably requested by Parent or ~~conditioned on, Parent’s or~~ Merger Sub to assist in Parent and Merger Sub’s ~~receipt~~ preparation of ~~financing.~~the Offering Documents and all supplements thereto; (ii) using reasonable best efforts to assist in the preparation of any Offering Documents (and any supplement thereto) (including identifying any portion of the information included therein that constitutes material, non-public information); (iii) upon reasonable advance notice to the Company from the Parent, having appropriate senior management of the Company and its Subsidiaries, with appropriate seniority and expertise, and appropriate Representatives participate in a reasonable number of meetings (including customary one-on-one meetings), due diligence sessions, drafting sessions and lender and “roadshow” presentations and ratings agency meetings and sessions; (iv) cooperating with the marketing efforts of Parent and the Financing Sources in connection with the Debt Financing, including direct contact between senior management and Representatives of the Company and its Subsidiaries and potential lenders and investors in the Debt Financing; (v) cooperating with the Financing Sources and their advisors in performing their due diligence; (vi) if and to the extent Parent elects to prepay, redeem, terminate or otherwise discharge any of the Company’s existing indebtedness other than the Company Notes, which are the subject of Section 7.6, (w) delivering notices of prepayment, redemption or termination within the time periods required by the relevant agreements governing such indebtedness (to the extent such notices are and are permitted to be conditioned on the occurrence of the Closing), (x) providing all cooperation reasonably requested by Parent and Merger Sub to facilitate and effectuate such prepayment, redemption, termination or discharge (including via a tender offer), including communicating with agents, lenders, trustees and holders of such indebtedness, (y) delivering any other documents and materials as may be necessary in connection with the payoff, discharge and termination in full on the Closing, of such indebtedness and liens under such indebtedness and (z) obtaining customary payoff letters, lien terminations, instruments of discharge to be delivered at the Closing and any possessory collateral delivered in connection with such indebtedness; (vii) providing at least three (3) Business Days prior to the Closing Date, all documentation and other information about the Company and each of its Subsidiaries as is reasonably requested in writing by Parent at least 8 Business Days prior to the Closing Date with respect to applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act; (viii) cooperating with Parent’s and Merger Sub’s legal counsel in connection with any legal opinions that such legal counsel may be required to deliver in connection with the Debt Financing; (ix) using reasonable best efforts to obtain customary consents of independent accountants of the Company and its Subsidiaries for use of their auditor opinions in any materials relating to the Debt Financing at the expense of and as reasonably requested by Parent on behalf of the Financing Sources and directing such accountants to partake in customary accounting and auditor due diligence sessions; (x) using reasonable best efforts to assist Parent and Merger Sub in obtaining any corporate credit and family ratings from any ratings agencies in respect of the relevant borrower, issuer or parent guarantors under the Debt Financing, including assisting Parent, Merger Sub and the Financing Sources in the preparation of materials for rating agency presentations; (xi) using reasonable best efforts to assist in the preparation, execution and delivery of definitive financing documents, including equity, guarantee and collateral documents and other certificates and documents as may reasonably be requested by Parent; (xii) facilitating the pledging of collateral for the Debt Financing (including the delivery of original share certificates, together with share powers executed in blank, with respect to the Company and each of its Subsidiaries), including taking reasonable actions necessary to permit the Financing Sources to evaluate the Company’s and its Subsidiaries’ assets, inventory, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements (including establishing bank and other accounts and blocked account and control agreements in connection with the foregoing); (xiii) using reasonable best efforts to assist the Financing Sources in benefitting from the existing lender relationships of the Company and its Subsidiaries, including seeking consent to the transactions contemplated hereby from lenders under existing Advance Facilities and Warehouse Facilities; (xiv) executing and delivering such documen

Appears in 2 contracts

Sources: Merger Agreement (Wmih Corp.), Merger Agreement (Nationstar Mortgage Holdings Inc.)

Financing. ~~(a) 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 ~~information~~encumbered Hotel is located, which provides that: A. This Agreement and any extensions, renewals, replacements or modifications thereto, and all right and interest of Manager in and to such Hotel, shall be subject and subordinate to the ~~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 ~~Company~~prior Landlord or Owner (b) responsible for any monies owing or on deposit with any prior Landlord or Owner to the credit of Manager (except to the extent actually paid or delivered to such Subsequent Holder), (c) subject to any counterclaim or setoff which theretofore accrued to Manager against any prior Landlord or Owner, (d) bound by any modification of this Agreement subsequent to such Mortgage which was not approved by the Mortgagee, (e) liable to Manager or beyond such Subsequent Holder’s ~~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 hand~~applicable 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 Amount~~Mortgagee or Subsequent Holder, as ~~promptly as practicable following the occurrence of such event~~applicable, 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~~ Closing Date and the ~~termination~~ Termination Date, each of ~~this Agreement in accordance with Article IX, Parent~~ the Company and ~~its Affiliates shall~~ the Partnership agrees to use reasonable best efforts to ~~take, or cause to be taken, all actions~~provide, and to use reasonable best efforts to docause the Company Subsidiaries (other than the Partnership) and each of their respective Representatives to provide, such cooperation as may be reasonably requested by Parent in connection with the arrangement of the receipt of proceeds (x) from an issuance of equity by Parent or ~~cause~~ any of its direct or indirect equityholders (the “Equity Financing”) or (y) from an issuance of debt by Parent or any of its direct or indirect equityholders (the “Debt Financing,” with the Equity Financing and Debt Financing each referred to ~~be done~~hereafter as a “Financing”), including reasonable best efforts to (i) provide assistance with any discussions of and/or furnish, as applicable, such business, financial statements, pro forma financials, projections, management discussion and analysis and other customary financial data and information reasonably required in connection with any Financing, all ~~things~~ for use in connection therewith, (ii) direct their respective independent accountants to provide customary and reasonable assistance in connection with any Financing, including in connection with providing customary comfort letters and consents, (iii) obtain customary payoff letters, releases of liens and other instruments of termination or discharge reasonably requested by Parent or any of its direct or indirect equityholders in connection with the repayment of indebtedness of the Company, the Partnership and their respective Subsidiaries as 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 transactions contemplated 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; this Agreement and (iv) subject to Section 5.19(a), authorize and facilitate discussions, meetings and other engagement by Parent, its Subsidiaries or Affiliates, ▇▇▇▇ Manager, its Subsidiaries or Affiliates, or SU, its Subsidiaries or Affiliates, with the current lenders, noteholders or other providers of Existing Indebtedness to the Company or the Company Subsidiaries for the purpose of obtaining Debt Financing, including by necessary or appropriate waivers of the Confidentiality Agreement to permit such activities. Parent shall reimburse the Company for all reasonable out-of-pocket costs or expenses incurred by the Company and the Company Subsidiaries in connection with cooperation provided for in this Section 5.17(a) to the extent the information requested was not otherwise prepared or available in the ~~event that~~ ordinary course of business. Any lender, underwriter, arranger, manager, placement agent or similar entity in connection with any Financing by Sempra or its Affiliates shall be deemed to be a “Representative” of Sempra for the ~~Offer Conditions have been satisfied or waived or~~purposes of the Amended and Restated Confidentiality Agreement, ~~upon funding would be satisfied~~dated June 18, ~~consummate the Debt Financing (including~~ 2018, 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~~ between Sempra Energy and the ~~definitive agreements relating~~ Company. Any lender, underwriter, arranger, manager, placement agent or similar entity in connection with any Financing by Parent or its Affiliates shall be deemed to be a “Representative” of Parent for purposes of the ~~Debt Financing)~~Confidentiality Agreement. (b) From and after the date ~~of this Agreement~~ hereof until the earlier of the ~~Effective Time~~ Termination Date and the Closing Date, it is understood that Parent or any of its direct or indirect equityholders may seek to market and consummate all or a portion of any Financing. In this regard, and for the ~~termination~~ avoidance of ~~this Agreement in accordance with Article IX~~doubt, ~~Parent and its Affiliates shall give~~ each of the Company ~~prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to~~ and the ~~Debt Commitment Letter of which Parent or~~ Partnership acknowledges that its ~~Affiliates becomes aware; provided that none~~ cooperation obligations set forth in Section 5.17(a) include the obligation upon the reasonable request of Parent ~~or Merger Sub shall be required~~ to ~~disclose or provide~~ use its reasonable best efforts to cooperate with any such ~~information~~efforts; provided, ~~the disclosure of which,~~ that such cooperation obligations are limited to those 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~~Section 5.17(a). (c) In Prior to the ~~event all~~ Closing Date, none of the Company, the Company Subsidiaries and their respective 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 indemnity in connection with any Financing or their performance of their respective obligations under this Section 5.17 or any ~~portion~~ information utilized in connection therewith. Parent shall indemnify and hold harmless the Company and the Company Subsidiaries and their respective Representatives from and against any and all costs suffered or incurred by them in connection with the arrangement of any Financing and the ~~Debt Financing becomes unavailable on the terms~~ performance of their respective obligations under this Section 5.17 and ~~conditions contemplated by the Debt Commitment Letter (including the flex provisions (if any))~~ any information utilized in connection therewith (other than ~~as a result~~ arising from information provided by the Company or the Company Subsidiaries specifically for use in the Financing pursuant to Section 5.17(a)). Each of the Company and the Partnership hereby consents to the use of the logos of the Company~~’s breach~~ , the Partnership and their respective Subsidiaries in connection with any 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, the Partnership or any of ~~any provision of this Agreement~~ their respective Subsidiaries 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 reputation 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 goodwill of the ~~Debt Financing that remains available and~~ Company, the Partnership 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 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 Subsidiaries. (d) ~~From~~ Parent, Merger Sub and Merger Partnership acknowledge and agree that the ~~date~~ consummation of the transactions contemplated by this Agreement ~~until~~ is not conditioned upon the ~~earlier~~ consummation of, or the receipt by Parent or any of its direct or indirect equityholders or any of their Affiliates of the ~~Effective Time or~~ proceeds of, the ~~termination of this Agreement in accordance with Article IX~~Financing. (e) Parent shall not, without the prior written consent of the Company, ~~Parent and its Affiliates shall not amend~~permit any amendment or modification to, ~~modify~~or any waiver of any provision (including any remedy) under, ~~supplement, restate, assign, substitute~~ or voluntarily replace the ~~Debt~~ Equity Commitment ~~Letter or any Debt Financing Document~~ Letters if such amendment, modification, ~~supplement, restatement, assignment, substitution~~ waiver or voluntary replacement ~~would~~ (Ai) 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 adds new (or ~~the satisfaction of the Financing Conditions~~adversely modifies any existing) ~~on the Closing Date or materially impair, delay or prevent~~ conditions to the consummation of the ~~transactions contemplated by~~ equity financing as compared to those in the Equity Commitment Letters, each as in effect on the date of this Agreement, ~~including~~ in a manner that would make any portion of the ~~Offer and the Merger~~equity financing less likely to be timely obtained, (Dii) ~~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~~ Equity Commitment Letters or ~~the~~ any definitive agreements ~~with respect thereto (clauses (A) through (E)~~relating to the equity financing as so amended, replaced, supplemented or otherwise modified, in any material respect, relative to the ability of Parent to enforce its rights against such other parties to the Equity Commitment Letters, 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,~~ or in ~~connection therewith, amend~~ the ~~economic and other arrangements with respect~~ applicable definitive agreements relating to ~~such appointments~~the equity financing, (2iii) 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 reduces the aggregate amount of the ~~Debt Financing~~equity financing (other than reductions of any amounts thereof constituting increases thereto after the date hereof), ~~in each case~~or (iv) would otherwise prevent, ~~so long as such amendments would not be reasonably expected to result in an Adverse Effect on Financing. Upon request~~ impede or delay the consummation of any of the ~~Company~~transactions contemplated hereby; provided, ~~Parent shall keep~~ that for the avoidance of doubt no consent from the Company ~~informed in reasonable detail~~ shall be required for any amendment, replacement, supplement or modification of the ~~status~~ Equity Commitment Letters that is limited to adding any direct or indirect equityholders of ~~Parent’s efforts to arrange~~ Parent that have not executed the ~~Debt Financing. Any alternative, substitute or replacement debt financing obtained by Parent in accordance with this paragraph and~~ Equity Commitment Letters as of the ~~previous paragraph is the “Alternative Financing.” For purposes~~ date 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, Merger Agreement (InfraREIT, 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 Sub shall use their reasonable best efforts to take, or cause to be taken, all ~~actions,~~ 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 or prior to~~ at the ~~Closing Date. Such actions shall include~~Effective Time, ~~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)~~Letter; (ii) ~~satisfy, or obtain a waiver thereof,~~ satisfy on a timely basis all ~~Financing Conditions to~~ of the ~~extent within~~ conditions precedent set forth in the ~~control of Parent and its Affiliates~~Debt Commitment Letter; (iii) negotiate, execute and deliver definitive documentation for 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 that reflects the terms contained in the Debt Commitment Letter (~~including~~ subject to 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 hereofflex provisions); and (iv) in the event that the ~~Offer Conditions~~ conditions set forth in Sections 7.1 and 7.2 and the conditions precedent set forth in the Debt Commitment Letter have been satisfied ~~or waived~~ or, upon funding would be satisfied, ~~consummate~~ cause the ~~Debt Financing (including by instructing the Debt Financing Sources~~ financing providers 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~~ full amount of the Debt Financing~~). (b) From~~ , except to the ~~date of this Agreement until~~ extent replaced with the ~~earlier of the Effective Time or the termination of this Agreement in accordance with Article IX,~~ Bond Financing. Parent ~~and its Affiliates~~ shall give the Company prompt notice of any material ~~breach, repudiation~~ breach 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~~ . Without limiting Parent’s and Merger Sub’s other obligations under this Section 6.15, if a breach 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)~~occurs, ~~then~~ Parent ~~and its Affiliates~~ shall (iA) promptly notify the Company ~~thereof~~ of such breach and (B) in consultation with the ~~reasons therefor~~Company, ~~(ii)~~ use reasonable best efforts to obtain alternative ~~financing from~~ financing, in an amount sufficient to make the ~~same or alternative Debt Financing Entities on~~ payments to be made by Parent and Merger Sub at the Effective Time upon terms and ~~conditions, taken as a whole, no~~ conditions not materially 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 Amountor Merger Sub, as promptly as practicable following the occurrence of such event. Without the Company’s prior written consent (which shall not be unreasonably conditioned, ~~and (iii) use reasonable best efforts~~ withheld or delayed), Parent shall not agree to ~~obtain~~or permit any amendment, ~~and when obtained~~replacement, ~~provide the Company with a true and complete copy~~ reduction, supplement, or other modification of, ~~a new financing commitment that provides for~~ or waive any of its material rights under, the Debt Commitment Letter, if such ~~alternative financing; provided that any provisions set forth in such new financing commitment relating to fees~~amendment, ~~pricing terms~~replacement, ~~“market flex” provisions (if any) and~~ supplement 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~~ modification or waiver 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~~materially delay, 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~~ impede the ~~funding~~ consummation of the Debt Financing (or would add any material additional conditions to the ~~satisfaction~~ availability 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 replacement financing); provided that, for the avoidance of doubt, Parent may (without the prior consent of the ~~other parties~~ Company) replace and amend the Debt Commitment Letter to add lenders, lead arrangers, book runners, syndication agents, or similar entities that had not executed the Debt Commitment Letter as of the date of this Agreement or to reflect changes to the Debt Commitment ~~Letters~~ Letter made pursuant to the terms set forth in the Fee Letter (as defined in the Debt Commitment Letter). Neither Parent nor Merger Sub shall consent to any assignment or rights or obligations under the ~~definitive agreements with respect thereto~~ Debt Commitment Letter (~~clauses (A~~I) ~~through (E), each an “Adverse Effect on Financing”); provided that Parent may,~~ without the prior written ~~consent~~ approval of the Company, ~~amend, modify, supplement, restate, assign, substitute~~ such approval not to be unreasonably withheld or ~~replace~~ (II) except for assignments under the terms of the Debt Commitment Letter~~, including (1) to add~~ . Parent and ~~appoint additional arrangers, bookrunners, underwriters, agents, lenders~~ Merger Sub shall consult with 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 reasonably informed ~~in reasonable detail~~ of the status of ~~Parent’s~~ their efforts to arrange the Debt ~~Financing. Any alternative, substitute or replacement debt financing obtained by Parent in accordance with this paragraph~~ Financing and the ~~previous paragraph is the “Alternative~~ Bond Financing.~~” For purposes of~~ (b) Without limiting Parent’s other obligations under this ~~Agreement~~Section 6.15, ~~references to “Debt Financing”~~ if the Marketing Period shall ~~include~~ not have been completed by April 3, 2013, then unless the ~~financing contemplated by any Alternative~~ Bond Financing ~~and references to “Debt Commitment Letter”, “Debt Fee Letters”, “~~or Debt Financing ~~Documents”~~shall have been previously consummated, ~~“Debt Financing Entities”~~Parent shall use its commercially reasonable efforts, ~~“Debt Financing Sources”~~including through the payment of commercially reasonable fees, ~~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~~ obtain an amendment 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 on or prior to April 3, 2013 to provide that the “outside date” of “March 4, 2013, subject to one extension to June 3, 2013 to the extent that the Termination Date (as defined in ~~effect~~ the Acquisition Agreement on the date ~~hereof (including~~ of this Commitment Letter) is extended to June 3, 2013 in accordance with the ~~market flex provisions (if any)) or agree to any term (including any market flex term (if any)) less favorable (taken~~ terms of the Acquisition Agreement” as ~~a whole) to Parent than such term contained~~ set forth in the Debt Commitment Letter as may be further extended, in ~~effect on~~ the ~~date hereof~~ event that the Marketing Period shall have begun but not been completed by the Termination Date, by a number of days equal to the lesser of (~~including~~ i) twenty (20) days plus four (4) business days following the ~~market flex provisions~~ Termination Date and (~~if any~~ii) the number of days then remaining in the Market Period plus four (4) business days (such extended date, the “Extension Date”)). 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 (Medicis Pharmaceutical Corp), Merger Agreement (Valeant Pharmaceuticals 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 and ~~its Affiliates~~ Merger Sub shall use reasonable best efforts to take, or cause to be taken, all actions, and shall 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 Financing on, in the case of clause (iii)(y) below, subject to clauses (A) through (C) of clause (iii) below, the terms and ~~to consummate~~ conditions described in the ~~Debt Financing~~ Commitment Letters (including, as necessary, the “flex” provisions contained in any related fee letter) as promptly as possible (taking into account the expected timing of the Marketing Period), but in any event on or prior to the ~~Closing Date. Such actions shall include~~date upon which the Merger is required to be consummated pursuant to the terms hereof, ~~but not be limited to,~~ including by using reasonable best efforts ~~to:~~ with respect to (i) ~~comply with and~~ causing the Equity Investors to maintain in effect the Equity Commitment Letter, (ii) maintaining in effect the Debt Commitment ~~Letter (subject to any amendment~~Letter, 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~~ negotiating and ~~deliver~~ entering into on the Closing Date definitive agreements with respect to the Debt Financing ~~Documents to~~ (the ~~extent required to pay the Required Amount~~ “Definitive Agreements”) (~~after taking into account any cash on hand, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities~~x) ~~and other sources of immediately available funds), which shall reflect~~ consistent with the terms and conditions contained in the Debt Commitment Letter (~~including any~~ including, as necessary, the “~~market~~ flex” provisions ~~(if any)~~ contained in any related ~~thereto~~fee letter) or (y) if available, on ~~such~~ other terms that (A) are acceptable to Parent ~~that~~ in its sole discretion, (B) would not ~~constitute an Adverse Effect on Financing as compared~~ reasonably be expected to ~~those set forth in~~ delay (taking into account the ~~Debt Commitment Letter delivered~~ expected timing of the Marketing Period) or adversely affect the ability of Parent to consummate the ~~Company on the date hereof;~~ transactions contemplated hereby and (C) would otherwise be permitted by Section 5.12(b), and (iv) in taking into account the ~~event that~~ expected timing of the ~~Offer Conditions have been satisfied or waived~~ Marketing Period, satisfying (or, ~~upon funding would be satisfied~~if reasonably required to obtain the Financing, ~~consummate~~ seeking the ~~Debt Financing (including by instructing the Debt Financing Sources to fund the Debt Financing~~ waiver of) on a timely basis all conditions in ~~accordance with the Debt Commitment Letter, and enforcing Parent’s rights under~~ the Debt Commitment Letter and the ~~definitive agreements relating to~~ Definitive Agreements that are within the control of Parent or Merger Sub and complying with its obligations thereunder. In the event that all conditions contained in the Debt ~~Financing~~Commitment Letter or the Definitive Agreements (other than the consummation of the Merger and other than the availability of the Cash Equity and those that by their nature are to be satisfied at the Closing) have been satisfied or waived, Parent and Merger Sub shall use their reasonable best efforts to cause the Lenders thereunder to comply with their respective obligations thereunder, including to fund the Debt Financing (including, subject to Section 8.7(c), by promptly commencing a litigation proceeding against any breaching Lender or other financial institution to compel such Lender or financial institution to provide its portion of the Debt Financing or otherwise comply with its obligations under the Debt Commitment Letter or Definitive Agreements). Each of Parent and Merger Sub shall use its reasonable best efforts to comply with its respective obligations, and enforce its respective rights, under the Commitment Letters and Definitive Agreements in a timely and diligent manner. (b) ~~From~~ Parent shall not, and shall not permit Merger Sub to, without the ~~date of this Agreement until the earlier~~ prior written consent of the ~~Effective Time~~ Company: (i) permit any amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letters if such amendment, modification or waiver (A) adds new (or adversely modifies any existing) conditions to the consummation of all or any portion of the Financing, (B) reduces the amount of the Financing to an amount that would on the Closing Date be less than the Merger Amounts, (C) adversely affects in a material respect the ability of Parent to enforce its rights against other parties to the Commitment Letters or the ~~termination of this Agreement in accordance with Article IX~~Definitive Agreements as so amended, ~~Parent and its Affiliates shall give the Company prompt notice of any material breach~~replaced, ~~repudiation~~ supplemented or ~~threatened material breach or repudiation by any party~~ otherwise modified, relative to the ~~Debt Commitment Letter of which Parent or its Affiliates becomes aware; provided that none~~ ability of Parent or Merger Sub, as applicable, to enforce its rights against the other parties to the Commitment Letters as in effect on the date hereof or (D) could otherwise reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger and the other transactions contemplated by this Agreement (taking into account the expected timing of the Marketing Period); or (ii) terminate any Commitment Letter or any Definitive Agreement unless such Commitment Letter or Definitive Agreement is replaced at such time with a new commitment letter or a new definitive agreement that would satisfy the preceding clause (i). Parent and Merger Sub shall ~~be required~~ promptly deliver 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~~ Company copies of any ~~confidentiality obligation~~amendment, modification, waiver or replacement of any Commitment Letter or any Definitive Agreement. (c) In the event ~~all or~~ that 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~~ unavailable, regardless 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)~~reason therefor, ~~then~~ Parent and ~~its Affiliates shall~~ Merger Sub will (i~~) promptly notify the Company thereof and the reasons therefor, (ii~~) use reasonable best efforts to obtain alternative debt financing (in an amount sufficient, when taken together with Cash Equity and the available portion of the Debt Financing, to pay the Merger Consideration and the other Merger Amounts) as promptly as reasonably practicable from the same or other sources; provided, that, in no event shall Parent be required to, and in no event shall its reasonable best efforts be deemed or construed to require it to, obtain alternative ~~Debt Financing Entities on~~ financing that includes terms and conditions, taken as a whole, no that are less favorable in any material respect to Parent and its Subsidiaries than the ~~Financing Conditions~~terms and conditions, ~~not involving any conditions that would constitute an Adverse Effect on Financing (~~taken as ~~defined below) as compared to those~~ a whole, set forth in the Debt Commitment Letter ~~delivered to the Company on the date hereof, that, when taken together with the portion~~ as 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 require it to pay any fees or agree to pay any interest ~~rates applicable to the Alternative Financing~~ rate amounts or original issue discounts, in either case, in excess of those contemplated by the Debt Commitment Letter as in effect on the date hereof (~~including the market~~ taking into account any flex provisions ~~(if any)~~applicable thereto contained in the Fee Letters) or ~~agree~~ which include any conditions to ~~any term (including any market flex term (if any))~~ the consummation of such alternative debt financing that would reasonably be expected to make the funding of such alternative debt financing less ~~favorable (taken as a whole)~~ likely to ~~Parent~~ occur, than ~~such term contained~~ the conditions set forth in the Debt Commitment Letter as ~~in effect on~~ of the date hereof (~~including~~ and, when obtained, provide the ~~market flex provisions~~ Company with a true and correct copy of any new financing commitment for such alternative debt financing) and (~~if any)~~ii) promptly (and in any event within two (2) Business Days) notify the Company of such unavailability and the reason therefor. For the purposes of this Agreement, the term “Debt Commitment Letter” shall be deemed to include any commitment letter (or similar agreement) with respect to any alternative or replacement financing arranged in compliance herewith (and any Debt Commitment Letter remaining in effect at the time in question). Parent and Merger Sub ~~expressly acknowledge~~ shall provide the Company with prompt oral and ~~agree that their obligations under this~~ written notice of any actual or threatened material breach, early termination, repudiation or material default by any party to any Commitment Letter or any Definitive Agreement, ~~including their obligations~~ in each case, of which Parent or Merger Sub obtain Knowledge and the receipt of any written notice or other written communication from any Lender, Equity Investor or other financing source with respect to any material breach, material default, early termination or repudiation by any party to any Commitment Letter or any Definitive Agreement of any provision thereof. Parent and Merger Sub shall keep the Company reasonably informed on a current basis of the status of its efforts to consummate the ~~Offer~~ Financing. The foregoing notwithstanding, compliance by Parent and ~~the Merger, are~~ Merger Sub with this Section 5.12 shall not ~~subject to, or conditioned on, Parent’s~~ relieve Parent or Merger ~~Sub’s receipt~~ Sub of ~~financing~~their obligation to consummate the transactions contemplated by this Agreement whether or not the Financing is available.

Appears in 2 contracts

Sources: Agreement and Plan of Merger (At Home Group Inc.), Merger Agreement (At Home Group Inc.)

Common use of Financing Clause in Contracts