Financing. (a) Subject to the terms and conditions of this Agreement, Parent 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, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 4 contracts
Sources: Agreement and Plan of Merger (PMC Sierra Inc), Agreement and Plan of Merger (Skyworks Solutions, Inc.), Merger Agreement (PMC Sierra Inc)
Financing. (a) Subject The Company will, and will cause each of its Subsidiaries to, use its reasonable best efforts to cause its and their respective Representatives to, at Parent’s sole cost and expense, cooperate with the Parent and take such actions as the Parent may reasonably request in connection with the procurement and consummation of the Financing (or any Alternative Financing); provided that nothing contained in this Section 6.9 shall require such cooperation to the terms extent it would unreasonably interfere with the ongoing operations of the Company and conditions of this Agreement, its Subsidiaries.
(b) Parent 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, advisable proper or proper advisable, to arrange and obtain (i) maintain in effect the Debt Financing Letter and to satisfy the conditions for obtaining the Financing, (ii) enter into definitive financing agreements with respect to the Financing so that such agreements are in effect no later than the Share Acceptance Time and (iii) consummate the Financing on or prior to the Share Acceptance Time. Without limiting the generality of the foregoing, in the event that Parent has been notified by the lenders party to the Debt Financing Letter that any portion of the Financing will not be available on the terms and conditions described in contemplated by the Debt Commitment Letter pursuant to Financing Letter, the terms thereof (including any “market flex” provisions) including using Parent shall promptly notify the Company in writing and use its reasonable best efforts to seek obtain alternative debt financing (“Alternative Financing”) in an amount at least sufficient to, in addition to enforce its rights the cash and marketable securities of CIFSA and the portion of the Financing that remains available on the terms and conditions contemplated by the Debt Financing Letter, pay when due for all of the Shares tendered and not properly withdrawn in the Offer and the aggregate Merger Consideration. Parent shall not agree to any amendments or modifications to, or waivers of, any condition or other material provision under the Debt Commitment Financing Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver consent of any provision under, the Debt Commitment Letter Company if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes would impose new or additional conditions to the initial funding receipt of the Financing or otherwise expands amend, modify or waive 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 Financing in a manner that would reasonably be expected to (x) cause any delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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 Annex I or Article VII. Notwithstanding the Debt Commitment Letterforegoing, neither the Parent nor the Purchaser shall be required to consummate the Debt Financing at (i) waive any conditions and requirements set forth in Annex I or prior Article VII, (ii) consent to any changes to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly as set forth in the Debt Commitment Letter have been or, upon funding of or (iii) accept Alternative Financing on terms less favorable to the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Purchaser in the aggregate than the Financing Sourceswould have been. In the event the Parent obtains Alternative Financing, lenders and the other persons providing or committing provisions of this Section 6.9 shall apply to provide the Debt such Alternative Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and same extent it applies to fund on or before the Effective Time the Debt Financing. The Parent shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its reasonable best efforts to arrange finalize the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or arrange any portion of the Debt Alternative Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with this Section 6.14(a)(iii)6.9.
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (COV Delaware Corp), Merger Agreement (Ev3 Inc.), Merger Agreement (Covidien PLC)
Financing. (a) Subject Prior to the Closing, Buyer shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things, in each case, within its control, necessary, proper or advisable to arrange financing on the terms and conditions described in the Debt Commitment Letter. Buyer shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter without Seller’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) if such amendment, modification or waiver (i) reduces the aggregate amount of the Financing, when taken together with Buyer’s cash on hand, to an amount below the amount required to satisfy Buyer’s obligations under this Agreement, (ii) impairs in any material respect the availability of the Financing, or (iii) amends the conditions precedent to the Financing in a manner that would reasonably be expected to delay in any material respect or prevent the Closing (provided that Buyer may, after consultation with Seller, replace or amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as of the date hereof so long as such action would not reasonably be expected to materially delay or prevent the Closing), including using its commercially reasonable best efforts to (a) maintain in effect the Debt Commitment Letter, (b) satisfy on a timely basis, to the extent within its control, all terms and conditions applicable to Buyer to obtaining the debt financing set forth therein, (c) negotiate and enter into definitive agreements with respect to the Debt Commitment Letter on the terms and conditions contained in the Debt Commitment Letter, and (d) comply with its obligations under the Debt Commitment Letter.
(b) In the event of any Financing Failure Event (other than a Financing Failure Event caused by the breach by Seller of this Agreement), Parent to the extent any portion of the Financing is required to fund the Purchase Price and any other amounts required to be provided by Buyer for the consummation of the transactions contemplated hereby, Buyer shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange reasonably necessary for and obtain as promptly as practicable following the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies occurrence of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter Financing Failure Event alternative debt financing (the “Debt Financing AgreementsAlternative Financing”) ), on substantially equivalent or more favorable terms in the terms aggregate from the same or other sources and conditions which do not include any incremental conditionality to the consummation of such alternative debt financing that are not materially less favorable more onerous to Parent than those contained Buyer (in the Debt Commitment Letter, (Caggregate) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of than the conditions set forth in the Debt Commitment LetterLetter in effect as of the date of this Agreement in an amount sufficient, which, subject to fulfilment of the conditions set forth in this Agreement, are available to Buyer, together with its cash on hand, to consummate the Debt Financing at or prior transactions contemplated hereby and to pay related fees and expenses earned, due and payable as of the Closing Date, it being understood and agreed that if Buyer proceeds with any Alternative Financing, Buyer shall be subject to the Closing, (D) same obligations with respect to comply such Alternative Financing as set forth in this Agreement with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior respect to the Effective TimeFinancing. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been orAlternative Financing is obtained, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent Buyer shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent Seller with a true and correct copy of the Company, take any action or enter into any transaction new financing commitment letter that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent provides for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Alternative Financing (the “Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related each fee letters and associated engagement letters letter (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic subject to redaction so long as such redaction does not cover terms that do not would adversely affect the enforceabilityconditionality, availability or conditionality ofterm of the Financing). If applicable, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letterFinancing” shall include “Alternative Financing”, and any reference to “Debt Commitment Letter” shall include the “Alternative Financing Commitment Letter”.
(c) Notwithstanding the foregoing, in no event shall the commercially reasonable best efforts of Buyer be deemed or construed to include require Buyer to, and Buyer shall not be required to (i) pay in the aggregate any fee letter relating to fees in excess of $25,000 more than the fees contemplated by the Debt Commitment Letter or any related fee letter, (ii) agree to conditionality terms in connection with the Financing that is not superseded are materially less favorable than those contemplated by any New the Debt Commitment Letter, (iii) agree to economic terms of the Financing (including cost of capital, maturity and fees) that are less favorable than those contemplated by the Debt Commitment Letter at or any related fee letter (including any “flex” provisions therein), (iv) waive any terms or conditions of this Agreement or of the time in question and each New Debt Commitment Letter or (v) require Buyer to initiate, prosecute or maintain any action, suit, claim, arbitration or other legal proceeding against the Lender, other potential lenders or other Persons providing the Financing under the Debt Commitment Letter.
(d) During the period from the date of this Agreement to the Closing Date, Seller shall use its commercially reasonable best efforts, and to cause its Representatives to, provide Buyer all cooperation that is reasonably requested by Buyer in connection with the Financing, the proceeds of which shall be used to consummate the transactions contemplated hereby, which cooperation shall include, in any event:
(i) participation in a reasonable number of meetings, presentations, road shows, due diligence sessions (including accounting due diligence sessions), drafting sessions, sessions with prospective lenders and sessions with rating agencies;
(ii) making Seller’s officers reasonably available to assist the Lender;
(iii) cooperating reasonably with the Lender’s due diligence, to the extent then customary and reasonable, including delivery of corporate organizational documents, and lien searches contemplated by the Debt Commitment Letter;
(iv) assisting Buyer and the Lender with the preparation of customary materials for rating agency presentations (and assisting in effectthe obtaining of corporate, credit and facility ratings from ratings agencies), offering documents, bank information memoranda (including the delivery of customary authorization and representation letters authorizing the distribution of information to prospective lenders or investors and containing a representation that the public side versions of such documents, if any, do not include material non-public information regarding Purchased Assets and the Joe’s Business), and all other material required in connection with the Financing and all documentation and other information reasonably required in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act; provided that, at least 5 Business Days prior to the Closing, Seller shall provide all such documentation and information about the Purchased Assets and the Joe’s Business as is reasonably requested in writing by Buyer at least 7 Business Days prior to the Closing to the extent required under applicable “know your customer” and anti-money laundering rules and regulations including the PATRIOT Act;
(v) assisting with the preparation of, and executing and delivering, any pledge and security documents, any loan agreement, notes, other definitive financing documents, legal opinions, or any other documents that facilitate the preparation of the definitive documentation for the Financing or the creation, perfection of liens securing the Financing as may be reasonably requested by Buyer in connection therewith;
(vi) facilitating the pledging of collateral and providing reasonable access in connection with any collateral audits and appraisals required in connection with the Financing;
(vii) assisting Buyer in preparing customary financial information and disclosures regarding the Purchased Assets or the Joe’s Business, as may be reasonably requested by Buyer and identifying any portion of such information that constitutes material non-public information;
(viii) instructing its independent accountants to cooperate with and assist Buyer in preparing customary and appropriate information packages and offering materials as the Lender or other prospective lenders may reasonably request for use in connection with the Financing and using commercially reasonable best efforts to cause such accountants to consent to the use of their reports in any material relating to the Financing (including, but not limited to, the audited financial statements referred to in the definition of “Required Information” set forth herein);
(ix) using commercially reasonable best efforts to obtain customary payoff letters, lien releases, instruments of termination, waivers, consents, estoppels, approvals or discharge, in each case reasonably requested by Buyer in connection with the Financing and collateral arrangements; and
(x) taking such corporate or entity actions, subject to the occurrence of the Closing, reasonably requested by Buyer to permit the consummation of the Financing and to permit the proceeds thereof to be made available at the Closing; provided, that (A) no such requested cooperation may unreasonably interfere with the ongoing operations of Seller, (B) no obligation of Seller under any certificate, agreement, notice or other document or instrument shall be effective until the Closing, and Seller shall not be required to pay or incur any liability for any commitment or other similar fee, pay or incur any liability for any expense (other than as provided in this Agreement) or incur any other obligation or liability in connection with the Financing prior to the Closing unless promptly reimbursed by Buyer (provided that notice of such fee, liability or expense is provided to Buyer) and (C) neither Seller nor its directors or officers shall be required to take any action to authorize or approve the Financing (or any Alternative Financing).
(e) On Seller shall use reasonable best efforts to, as promptly as practicable, update or correct any Required Information determined to contain any untrue statement of material fact or omit to state any material fact necessary to make the Closing Date, Parent shall provide all funds required statements contained therein not materially misleading. Seller hereby consents to effect the repayment reasonable use of all indebtedness under the Company Credit Agreement its and its Subsidiaries’ logos in full in accordance connection with the Company Credit AgreementFinancing, subject provided that such logos are used solely in a manner that is not intended to compliance with Section 6.14(a)(iii)or reasonably likely to harm or disparage Seller or its Subsidiaries or the reputation or goodwill of Seller or its Subsidiaries or any of their logos.
(f) Notwithstanding anything Seller shall prepare and furnish to Buyer and Parent, as promptly as reasonably practicable (and, in any event, no later than the contrary contained hereintime periods (if applicable) specified in the definition of “Required Information”), Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this AgreementRequired Information.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Sequential Brands Group, Inc.), Asset Purchase Agreement (Joe's Jeans Inc.), Asset Purchase Agreement
Financing. (a) Subject to the terms and conditions of this Agreement, each of Holdco and Parent 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, necessary and advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Financing Commitments and shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision underor remedy under any Financing Commitment; provided, that Parent and Merger Sub may amend or modify the Financing Commitments and/or elect to replace all or any portion of the Debt Commitment Letter if such amendmentFinancing and/or Equity Financing with alternative debt and/or equity financing (the “Alternative Financing”), supplement, replacement, modification in each case so long as (i) the aggregate proceeds of the Financing (as amended or waiver modified) and/or any Alternative Financing will be sufficient for Merger Sub and the Surviving Corporation to pay (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or Merger Consideration, and (B) imposes any other amounts required to be paid in connection with the consummation of the Transactions upon the terms and conditions contemplated hereby and all related fees and expenses associated therewith, (ii) the amendment or modification or the Alternative Financing does not impose new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies the existing conditions in any other provision of way and (iii) the Debt Commitment Letter in a manner that amendment or modification or the Alternative Financing would not or would not reasonably be expected to (x) prevent or materially delay or prevent the funding in full consummation of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, Transactions or (y) adversely affect impact the ability of Parent or Merger Sub to enforce its their respective rights against the other parties to the Debt Commitment Letter 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 delay or prevent the Closing)Financing Commitments. Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) . In addition, Holdco, Parent shall, and Merger Sub shall cause its Affiliates and Representatives to, use its their respective reasonable best efforts to (Ai) subject to its rights under the first sentence of this Section 6.07(a), maintain in full force and effect the Debt Commitment Letter Financing Commitments until the Transactions are consummated, (provided that ii) negotiate any definitive agreements in addition to the Debt Commitment Letter may be amendedLoan Agreement and as contemplated by the Loan Agreement (including, supplementedwithout limitation, replaced, modified or waived as provided the Company Security Documents defined in this Section 6.13the immediately following section (c)), (B) with respect to negotiate the Senior Debt Financing and enter into definitive agreements with respect to the Mezzanine Debt Commitment Letter (Financing, and the “Debt Equity Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Note Purchase Agreement and the Equity Commitment LetterLetters, (Ciii) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of in the full amount of the Debt Financing at the Closing set forth therein Commitments that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to and otherwise comply with its obligations under the Debt Commitment Letterthereunder, and (Eiv) to consummate the Debt Financing at or prior to the Effective TimeTime and (v) assuming all terms and conditions of the Debt Financing have been satisfied, cause the Lender or the Sponsor to fund on the Closing Date the Debt Financing required to consummate the Merger and the other transactions contemplated hereby; provided, that under no circumstance shall Parent or Merger Sub be under any obligation to seek through litigation or other legal proceeding to enforce its rights against any Lender. In the event that all conditions precedent expressly set forth in to funding under the Debt Financing Commitments (other than the Equity Commitment Letter Letters) have been orsatisfied, upon funding of the Debt Financing will be, satisfiedHoldco, Parent and Merger Sub shall use their respective reasonable best efforts to enforce their rights undercause the Sponsor and Mr. Zishen Wu to fund the Equity Financing required to consummate the transactions contemplated under this Agreement, including the Merger in accordance with the terms of this Agreement (including taking enforcement actions to cause such persons to provide such Equity Financing in the event conditions (A) through (D) under Section 9.07(b)(i) have been satisfied). For purposes of this Section 6.07, references to “Financing” shall include the financing contemplated by the Financing Commitments as permitted to be replaced, amended or supplemented by this Section 6.07(a), and cause the references to “Financing SourcesCommitments” shall include such documents as permitted to be replaced, lenders and the other persons providing amended or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request supplemented by the Company, provide to the Company copies of all executed Debt Financing Agreementsthis Section 6.07(a).
(cb) Without limiting the foregoinggenerality of Section 6.07(a), Holdco and Parent agrees to notify shall give the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date prompt notice: (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any material breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement event or (B) any other party to the Debt Commitment Letter circumstance that, with or any Debt Financing Agreement ifwithout notice, in the case lapse of this clause (B)time or both, such breach or default would could reasonably be expected to affect the availability give rise to any breach or default) by any party to any Financing Commitment, which would be reasonably likely to result in any condition of the Debt Financing Commitment not to be satisfied or the termination of any Financing Commitment, of which Parent or Merger Sub becomes aware; (ii) of the receipt of any written notice or other written communication from any party to any Financing Commitment with respect to any alleged or potential breach, default, termination or repudiation by any party to any Financing Commitment or any provisions of the Financing Commitment related to the Financing which could result in any condition of the Financing Commitment not to be satisfied or the termination of any Financing Document; (iii) a counterparty indicates in writing of any material dispute or orally disagreement between or among any parties to the Financing Commitment; and (iv) if Holdco, Parent or Merger Sub at any time believes that it will not provide, or it refuses be able to provide, obtain all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the CompanyCommitments. In the event any New portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, (A) Parent shall promptly notify the Company, and (B) Holdco and Parent shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources on terms not less favorable to Holdco, Parent and Merger Sub (as determined in the reasonable judgment of Parent), in an amount sufficient to consummate the Merger as promptly as possible, but in any event no later than the earlier of (x) thirty (30) days after the originally contemplated Closing Date, or (y) the Termination Date.
(c) The Company agrees to provide, and shall cause each Company Subsidiary 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 Commitment Letter is obtainedFinancing and any Alternative Financing, including, without limitation, (i) causing the Company’s independent accountants to provide assistance and cooperation to Parent and its representatives, including participating in drafting sessions and accounting due diligence sessions, assisting in the preparation of any reference in this Agreement pro forma financial statements, providing consent to Parent to use audit reports relating to the Company and the Company Subsidiaries and providing any necessary “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) belowcomfort letters”, (ii) assisting in the negotiation of, and executing and delivering, definitive financing documents, including pledge and security documents, and certificates (including a certificate of the chief financial officer of the Company (or any reference in this Agreement of the Company Subsidiaries) with respect to solvency matters before giving effect to the “Debt Commitment Letter” shall Financing or Alternative Financing, the consummation of the Transactions, any matters relating to Parent or any actions to be deemed to include taken from and after the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter Closing), legal opinions, management representation letters or other documents, to the extent then reasonably requested by Parent and otherwise reasonably facilitating the pledging of collateral or consummation of the Debt Financing or Alternative Financing, (iii) providing reasonable access by Parent and any Debt Financing or Alternative Financing sources, and their respective officers, employees, consultants and advisors (including legal, valuation, and accounting advisors) to the books and records, properties, officers, directors, agents and representatives of the Company and each of the Company Subsidiaries, (iv) obtaining surveys and title insurance reasonably requested by Parent, (v) using commercially reasonable efforts to obtain consents customary for financings similar to the Debt Financing or Alternative Financing, (vi) taking all reasonable actions necessary to (x) permit the prospective lenders involved in effectthe Debt Financing or Alternative Financing to evaluate the Company’s assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (y) establish bank and other accounts and blocked account Contracts and lock box arrangements in connection with the foregoing, and (iiivii) take all other corporate actions reasonably necessary to permit the consummation of the Debt Financing or Alternative Financing; provided, that (A) none of the Company or any reference in this Agreement to “fee letter” of the Company Subsidiaries shall be deemed required to include become subject to any fee letter relating obligations or liabilities with respect to definitive financing documents, including pledge and security documents prior to the Debt Commitment Letter Closing and none of the Company or any Company Subsidiary shall be required to take any action that is not superseded by any New Debt Commitment Letter at contingent upon the time in question and each New Debt Commitment Letter Closing or that would be effective prior to the Effective Time, (B) nothing herein shall require such cooperation to the extent then in effect.
(e) On it would interfere unreasonably with the Closing Date, Parent shall provide all funds required to effect the repayment business and operations of all indebtedness under the Company Credit Agreement in full in accordance with or the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
Subsidiaries and (fC) Notwithstanding anything to none of the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s Company or any of its Affiliates’ obtaining funds the Company Subsidiaries shall be required to consummate issue any offering or information document prior to the Merger Effective Time. Notwithstanding any other provision of this Agreement, none of the Company or any of the Company Subsidiaries shall be required to take any action that would subject it 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 which the Parent does not agree to reimburse the Company for or incur any other liability or provide or agree to provide any indemnity in connection with the Financing or any of the foregoing prior to the Effective Time. Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable out of pocket costs and expenses incurred by the Company and the transactions Company Subsidiaries in connection with the cooperation of the Company and the Company Subsidiaries contemplated by this AgreementSection 6.07 and shall indemnify and hold harmless the Company and the Company Subsidiaries 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 of the Debt Financing or Alternative Financing and any information utilized in connection therewith except with respect to any information provided by the Company or any of the Company Subsidiaries. The Company hereby consents to the use of its and the Company Subsidiaries’ logos in connection with the Debt Financing or Alternative Financing; provided, that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any Company Subsidiary.
Appears in 3 contracts
Sources: Merger Agreement (Full Alliance International LTD), Merger Agreement (Yongye International, Inc.), Merger Agreement (Morgan Stanley)
Financing. (ai) Subject to the terms and conditions of this Agreement, Parent each of Montage and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Transaction Financing on the terms and conditions (including the flex provisions and taking into account the Marketing Period) described in the Debt Commitment Letter pursuant to at Closing (taking into account the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Marketing Period), and shall not, without the Company’s prior written consentconsent of Marigold (which consent shall not be unreasonably withheld, conditioned or delayed), permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendmentLetter, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 or make less likely the funding in full of the Debt Transaction Financing contemplated by the Commitment Letter (or satisfaction of the conditions precedent to the Debt Transaction Financing) on the Closing Date, Date in any material respect or (y) adversely affect extend or permit the ability extension of Parent to enforce its rights against other parties to the Debt marketing period under the Commitment Letter or (provided that, without the definitive agreements with respect thereto (providedconsent of Marigold, that Parent Montage may amend the Debt Commitment Letter (x) to favorably modify pricing terms or add or replace additional lenders, lead arrangers, bookrunners, syndication bookrunners and agents or similar entities so long as such action would not reasonably be expected (y) to delay implement or prevent exercise any of the Closing“market flex” provisions (including pricing terms) contained in the fee letter executed in connection with the Commitment Letter). Parent Montage shall promptly deliver to the Company true, complete and correct Marigold copies of any such amendment, modification or replacement. For purposes of this Section 6.12, references to “Transaction Financing” shall include the Transaction Financing contemplated by the Commitment Letter as permitted to be amended, modified or replaced by this Section 6.12(a) and references to “Commitment Letter” shall include such documents as permitted to be amended, modified or replaced by this Section 6.12(a).
(bii) Parent shall, Each of Montage and Merger Sub shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)Letter, (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on consistent in all material respects with the terms and conditions that are not materially less favorable to Parent than those (including the flex provisions and taking into account the Marketing Period) contained in the Debt Commitment Letter (or on terms no less favorable (taken as a whole) to Montage or Merger Sub than the terms and conditions (including flex provisions) in the Commitment Letter), and (C) to satisfy on a timely basis (or obtain the waiver of) on a timely basis all conditions precedent to funding in the Commitment Letter and such definitive agreements thereto (taking into account the Marketing Period and other than any condition where the failure to be so satisfied is a direct result of Marigold’s failure to furnish information described in Section 6.12(b), ) that are within Montage’s control and 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 Debt Transaction 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent Montage shall keep the Company Marigold reasonably informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, Transaction Financing and provide to the Company Marigold copies of all executed Debt Financing Agreements.
(c) the material definitive agreements for the Transaction Financing. Without limiting the generality of the foregoing, Parent agrees Montage shall give Marigold prompt notice (x) of any material breach or default by any party to notify any of the Company promptlyCommitment Letter or definitive agreements related to the Transaction Financing of which Montage becomes aware, (y) of the receipt of (A) any written notice or (B) other written communication, in each case from any Financing Source with respect to any actual or potential material breach, default, termination or repudiation by any party to any of the Commitment Letter or definitive agreements related to the Transaction Financing of any provisions of the Commitment Letter or definitive agreements related to the Transaction Financing, and (z) if at any time for any reason Montage believes in good faith that it will not be able to obtain all or any portion of the Transaction Financing on the terms and conditions, in the manner or from the sources contemplated by any of the Commitment Letter or definitive agreements related to the Transaction Financing. As soon as reasonably practicable after any notice by Montage to Marigold of the type described in the immediately preceding sentence, but in any event within two (2) Business DaysDays of the date Marigold delivers to Montage a written request, if at Montage shall use reasonable best efforts to provide any time prior information reasonably requested by Marigold relating to the Closing Date any circumstance referred to in clause (i) the Debt Commitment Letter is terminated for any reasonx), (iiy) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (Bz) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing immediately preceding sentence; provided, that they need not provide any information believed to be privileged or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, is requested for purposes of litigation. If all or any portion of the Transaction Financing becomes unavailable for any reason, and such portion is reasonably required to pay the aggregate Cash Consideration, repay the Retired Debt and pay all fees, expenses and other amounts contemplated to be paid by Montage or Merger Sub pursuant to this Agreement, Montage and Merger Sub shall use their reasonable best efforts to arrange and obtain in replacement thereof alternative debt Transaction Financing contemplated by from alternative sources in an amount sufficient, when taken together with available cash of Montage and any then-available Transaction Financing pursuant to the Debt Commitment Letter, to consummate the Merger with terms and conditions not materially less favorable (taken as a whole) to Montage and Merger Sub than the terms and conditions (taken as a whole) set forth in the Commitment Letter (it being understood for the avoidance of doubt that the foregoing shall not be construed to relieve Montage of its obligations to consummate the transactions contemplated in this Agreement if all conditions set forth in Sections 7.1 and 7.2 shall have been satisfied or waived or shall then be capable of being satisfied) (“Available Transaction Financing”), as promptly as reasonably practicable following the occurrence of such event. Montage shall deliver to Marigold true and complete copies of all commitment letters and fee letters (subject to redactions similar to the redactions made to the fee letter delivered on the terms set forth therein. Parent date hereof) pursuant to which any such alternative source shall promptly have committed to provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Transaction Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings . Notwithstanding anything in this Section 6.12 or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference elsewhere in this Agreement to the contrary, in no event shall the “Debt Financingreasonable best efforts” of Montage or Merger Sub be deemed or construed to require any such Person to, and no such Person shall include be required to, pay any debt financing fees in the aggregate in excess of those contemplated by the Commitment Letter, or agree to conditionality or economic terms of the debt financing that are (other than as specified in the preceding sentence) materially less favorable than those contemplated by the Debt Commitment Letter (including any “flex” provision therein).
(b) With respect to the Transaction Financing, prior to Closing, Marigold shall, and shall cause the Marigold Subsidiaries to, and use reasonable best efforts to cause its and the Marigold Subsidiaries’ respective Representatives to provide to Montage such cooperation in connection with the Transaction Financing as may be reasonably requested by Montage, including:
(i) assisting in preparation for and participation, upon reasonable advance notice, in a reasonable number of meetings and calls (including customary one-on-one meetings with parties acting as lead arrangers, bookrunners or agents for, and prospective lenders of, the Transaction Financing), drafting sessions, rating agency presentations, road shows and due diligence sessions (including accounting due diligence sessions) and assisting Montage in obtaining ratings in respect of Montage and public ratings in respect of any debt issued as part of the Transaction Financing from Standard & Poor’s Financial Services LLC and ▇▇▇▇▇’▇ Investors Service, Inc.;
(ii) assisting Montage and its potential financing sources in the preparation of (A) customary offering documents, private placement memoranda, bank information memoranda, prospectuses and similar marketing documents for any of the Transaction Financing (including the provision of “backup” support), including the execution and delivery of customary authorization and representation letters in connection with bank information memoranda authorizing the distribution of information to prospective lenders and identifying any portion of such information that constitutes material, nonpublic information regarding Marigold or the Marigold Subsidiaries or their respective securities (in each case in accordance with customary syndication practices) and containing a representation that the public-side version does not include material non-public information about Marigold and its Subsidiaries or their securities and (B) customary materials for rating agency presentations for the Transaction Financing;
(iii) delivering to Montage the Required Financial Information;
(iv) delivering to Montage and its potential financing sources as promptly as reasonably practicable (x) such information as may be reasonably necessary for the Required Financial Information to remain Compliant and (y) such other pertinent financial and other customary information (including assistance with preparing projections, financial estimates, forecasts and other forward-looking information) to the extent reasonably requested by Montage or identified in paragraphs 7 and 8 of Exhibit D to the Commitment Letter in connection with the preparation of customary offering or information documents to be used for the Transaction Financing, as applicable, and assisting Montage in preparing pro forma (A) balance sheets and related notes as of the most recently completed interim period, and (B) income statements and related notes for the most recently completed fiscal year, for the most recently completed interim period and for the twenty-four (24) month period ending on the last day of the most recently completed four (4) fiscal quarter period ended at least forty-five (45) days before the Closing Date (or ninety (90) days in case such period includes the end of Marigold’s fiscal year), prepared after giving effect to the transactions described in the Commitment Letter as modified pursuant if such transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statements of income) and any other pro forma financial information required by Regulation S-X in connection with the Transaction Financing; provided that none of Marigold, any of the Marigold Subsidiaries or any of their Representatives shall be responsible in any manner for information relating to the proposed debt and equity capitalization that is required for such pro forma financial information;
(v) causing its independent registered public accounting firm (x) to cooperate with Montage in connection with the Transaction Financing, including by providing customary “comfort letters” (including customary “negative assurances”) and (y) to provide customary assistance with the due diligence activities of Montage and the financing sources and the preparation of any pro forma financial statements to be included in the documents referred to in clause (iiiv) belowabove, and customary consents to the inclusion of audit reports in any relevant marketing materials, registration statements and related government filings;
(iivi) using commercially reasonable efforts to ensure that the Transaction Financing benefits from the existing lending relationships of Marigold and the Marigold Subsidiaries;
(vii) assisting to identify the steps for repayment on the Closing Date of the Marigold Credit Facility, the Lunar Notes and other Retired Debt of Marigold, the Marigold Subsidiaries or the Marigold Sharing Companies other than indebtedness which may be mutually agreed and cooperating with any reference back-stop, “roll-over” or termination of any existing letters of credit thereunder (and the release and discharge of all related liens and security interests), by providing to Montage at least three (3) Business Days prior to Closing customary pay-off letters (in this Agreement substantially final form), UCC-3 financing statements, filings with the United States Patent and Trademark and/or Copyright Office, real property mortgage releases, account control agreement termination notices, and other similar and related ancillary agreements as are necessary in connection with the Transaction Financing (it being understood that no such documentation shall become effective until the Effective Time);
(viii) using commercially reasonable efforts to obtain such consents, approvals and authorizations required in connection with the Transaction Financing which may be reasonably requested by Montage;
(ix) executing and delivering as of, but not effective before, the Effective Time, and subject in each case to the “Debt Certain Fund Provisions” in the Commitment Letter” shall : customary definitive financing documentation as may be deemed to include reasonably requested by Montage, including pledge and security documents, guarantees, customary officer’s certificates (including, without limitation, delivery of a solvency certificate in customary form), instruments, copies of any existing surveys, UCC financing statements, filings, security agreements, control agreements, title insurance and other matters ancillary to, or required in connection with, the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time Transaction Financing (including (A) delivering stock certificates for certificated securities and (with transfer powers executed in question blank) of Marigold and each New Debt Commitment Letter its domestic Subsidiaries to the extent then required on the Closing Date by the terms of the Transaction Financing and (B) using commercially reasonable efforts to provide customary regulatory and local counsel legal opinions);
(x) taking all corporate actions reasonably requested by Montage that are necessary to permit the consummation of the Transaction Financing (subject in effecteach case to the “Certain Funds Provisions” in the Commitment Letter), including with respect to corporate actions of the Surviving Corporation to be effected immediately following the Effective Time, and (iii) to permit the cash at Marigold and the Marigold Subsidiaries, if any, to be made available on the Closing Date to consummate the transactions contemplated hereby, including the repayment of outstanding Indebtedness of Marigold and the Marigold Subsidiaries; provided that the foregoing shall not require the adoption of any reference in this Agreement to “fee letter” shall corporate resolutions or actions that would be deemed to include any fee letter relating effective prior to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.Effective Time;
(exi) On at least three (3) Business Days prior to the Closing Date, Parent shall provide providing all funds documentation and other information relating to Marigold and the Marigold Subsidiaries required by applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act to effect the repayment extent reasonably requested by Montage; and
(xii) reasonable participation by senior officers of all indebtedness under Marigold and its Subsidiaries in the Company Credit Agreement in full in accordance with negotiation of the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii)definitive documentation for the Transaction Financing.
(fc) Marigold hereby consents to the use of all of its and the Marigold Subsidiaries’ logos in connection with the Transaction Financing, provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage Marigold or the Marigold Subsidiaries or the reputation or goodwill of Marigold or any Marigold Subsidiary; and subject to the prior review by, and consent of, Marigold (such consent not to be unreasonably withheld or delayed). Notwithstanding any other provision set forth herein or in any other agreement between Marigold and Montage (or their respective affiliates), Marigold agrees that Montage and its affiliates may share customary projections with respect to Marigold and its business, which are approved for distribution by Marigold, with their potential financing sources and other prospective lenders in connection with any marketing efforts in connection with the Transaction Financing, provided that the recipients of such information agree to customary confidentiality arrangements. Notwithstanding anything to the contrary contained hereinin this Agreement, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or none of Marigold, any of its Affiliates’ obtaining funds to consummate the Merger and Marigold Subsidiaries, any of the transactions contemplated applicable Marigold Sharing Companies, any of their respective directors or officers or other personnel shall be required by this Agreement.S
Appears in 3 contracts
Sources: Merger Agreement (Nexstar Broadcasting Group Inc), Merger Agreement (Media General Inc), Merger Agreement (Nexstar Broadcasting Group Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent 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 or proper to arrange and obtain consummate the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof Letter, including (including any “market flex” provisionsi) including using its reasonable best efforts to seek (x) satisfy on a timely basis all terms, covenants and conditions set forth in the Commitment Letter; (y) enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Commitment Letter; and (z) consummate the Financing at or prior to Closing; and (ii) seeking to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunderLetter. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver will furnish correct and complete copies of any provision under, the Debt Commitment Letter if all such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacementpromptly upon their execution.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of with respect to all material activity concerning the status of its efforts to arrange the Debt Financing, and, promptly following request Financing contemplated by the Company, provide to Commitment Letter and shall give the Company copies prompt notice of all executed Debt Financing Agreements.
(c) any material adverse change with respect to such Financing. Without limiting the foregoing, Parent agrees to 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 is shall expire or be terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source financing source that is a party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party notifies Parent that such source no longer intends to provide financing to Parent on the Debt Commitment Letter or any Debt Financing Agreement ifterms set forth therein, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates for any reason Parent no longer believes in writing or orally good faith that it will not provide, or it refuses be able to provide, obtain all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth described therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor and shall it not permit any of its Affiliates to, without the prior written consent of the Company, take or fail to take any action or enter into any transaction transaction, including any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing, that would could reasonably be expected to materially impair, delay or prevent consummation of all the Financing contemplated by the Commitment Letter or any Alternate Financing contemplated by any Alternate Financing. Parent shall not amend or alter, or agree to amend or alter, the Commitment Letter in any manner that would prevent or materially impair or delay the consummation of Transactions without the prior written consent of the Company.
(c) If any portion of the Debt Financing.
(d) Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter or the Commitment Letter shall be terminated or modified in a manner materially adverse to Parent for any reason, Parent shall have use its reasonable best efforts to arrange to obtain alternative financing from alternative sources in an amount sufficient to consummate the right Transactions (“Alternate Financing”) and to substitute obtain, and, if obtained, will provide the net cash proceeds received Company with a copy of, a new financing commitment that provides for at least the same amount of financing as such Commitment Letter as originally issued, to the extent needed to fund the Required Amounts, and on terms and conditions (including termination rights and funding conditions) no less favorable to Parent or Merger Sub than those included in the Commitment Letter (the “New Commitment Letter”). To the extent applicable, Parent shall use its reasonable best efforts to take, or cause to be taken, all things necessary, proper or advisable to arrange promptly and consummate the Alternate Financing on the terms and conditions described in any New Commitment Letter, including (i) using reasonable best efforts to (x) satisfy on a timely basis all terms, covenants and conditions set forth in the New Commitment Letter; (y) enter into definitive agreements with respect thereto on the terms and conditions contemplated by Parent after the date hereof New Commitment Letter; and (z) consummate the Alternate Financing at or prior to the Closing from consummated offerings or other incurrences of debt and (including notesii) by Parent for all or any portion of the Debt Financing by reducing commitments seeking to enforce its rights under the Debt New Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any Alternate Financing is obtained and a New Debt Commitment Letter is obtainedentered into, (i) any reference references in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter refer to the extent then in effectNew Commitment Letter, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectas applicable.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Hexion Specialty Chemicals, Inc.), Merger Agreement (Huntsman International LLC)
Financing. (a) Subject to the terms Without limiting Section 6.4, each of Parent OP and conditions of this Agreement, Parent Sub shall use its reasonable best efforts to (and shall cause their Affiliates to) take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain consummate the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant Parent Revolving Credit Facility (without, for the avoidance of doubt, any requirement to bring any legal action against the terms thereof (Lender) , including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 satisfying on a timely basis all terms, covenants and conditions set forth in the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing DateParent Revolving Credit Facility, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the entering into definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter on terms and conditions substantially similar to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to contemplated by the Parent than those contained in Revolving Credit Facility and (z) consummating the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis OP will furnish correct and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company complete copies of all executed Debt Financing Agreementssuch definitive agreements to the Representative promptly upon their execution.
(cb) Without limiting the foregoing, Parent agrees to notify OP and Parent Sub shall keep the Company and the Representative informed on a reasonably current basis with respect to all material activity concerning the status of their efforts to arrange and consummate the Financing and shall give the Company and the Representative prompt notice of any material adverse change with respect thereto. Parent OP and Parent Sub agree to provide written notice to the Company and the Representative promptly, and in any event within two (2) Business Days, if at any time prior any financing source that is to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source be a party to the Debt Commitment Letter Parent Revolving Credit Facility notifies Parent OP or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates Parent Sub in writing that such source no longer intends to provide financing to Parent OP or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter Parent Sub on substantially the terms set forth therein, or Parent OP or Parent Sub believes in good faith that it will be unable to obtain the Financing on substantially the terms described in the Parent Revolving Credit Facility. None of Parent OP or Parent Sub shall promptly provide amend or alter, or agree to amend or alter, the Parent Revolving Credit Facility in any information manner that would be materially adverse to the Contributors or reasonably requested by likely to prevent or materially impair or delay the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any consummation of its Affiliates tothe Contemplated Transactions, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or Representative.
(c) If any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof Financing becomes unavailable on terms and prior conditions substantially similar to the Closing terms and conditions contemplated in the Parent Revolving Credit Facility or the Parent Revolving Credit Facility shall be modified in a manner materially adverse to Parent OP, Parent Sub or the Contributors, Parent OP and Parent Sub shall (and shall cause their Affiliates to) obtain and as promptly as reasonably practicable provide the Company and the Representative with a copy of, a new credit facility (the “New Facility”) from consummated offerings or other incurrences of debt alternative sources on terms and conditions substantially similar to the terms (including noteswith respect to interest rate and fees) by and conditions contemplated in the Parent for all Revolving Credit Facility or any portion other financing of the Debt type permitted by Section 3.F of the Tax Matters Agreements as refinancing of the Financing by reducing commitments (“Alternate Financing”); provided, that such New Facility and such Alternate Financing must (i) provide for aggregate debt financing to Parent OP that has the benefit of the Member Guarantees in an amount equal to $550,000,000 (it being understood that a lesser amount may be required to satisfy the Parent Parties’ obligations under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letterthis Agreement), (wii) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents be available to Parent, is sufficient to pay all fund the Special Distribution Amount and other amounts required to be paid in connection with funded from the transactions contemplated by Financing, and (iii) otherwise satisfy the requirements for the Financing under this Agreement. To the extent applicable, Parent OP and Parent Sub shall (and shall cause their Affiliates to) take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange promptly and consummate the Alternate Financing on the terms and conditions described in any New Facility, including (x) satisfying on a timely basis all terms, covenants and conditions set forth in the proceeds New Facility (without, for the avoidance of such debt offerings or other incurrences have been received by Parent in cashdoubt, any requirement to bring any legal action against the Lender); (y) Parent promptly notifies entering into definitive agreements with respect thereto on terms and conditions substantially similar to the Company of such substitution terms and reduction conditions contemplated by the New Facility; and (z) true, correct and complete copies of each material amendment consummating the Alternate Financing at or modification prior to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the CompanyClosing. In the event any Alternate Financing is obtained and a New Debt Commitment Letter Facility is obtainedentered into, (i) any reference references in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” applicable Parent Revolving Credit Facility shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectFacility, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) as applicable. Notwithstanding anything to the contrary contained hereinin this Agreement, Parent’s obligations hereunder are Parent REIT, Parent OP and Parent Sub acknowledge and agree that obtaining the Financing, or any Alternate Financing, is not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to their respective obligations to consummate the Merger Contemplated Transactions at Closing; provided, that the Parent Parties shall not be deemed to have breached Section 6.5(a) if they obtain Alternate Financing in accordance with Section 6.5(c).
(d) The Company agrees to use, and to cause the transactions contemplated Group Companies to use, reasonable efforts to provide all cooperation reasonably requested by Parent OP in connection with the Financing (including, as applicable, any Alternate Financing), including without limitation: (i) providing and causing their advisors to provide all available information reasonably deemed reasonably necessary by Parent OP or the Lenders to complete syndication of the Financing, including, but not limited to available financial information that is customarily provided in such financings and is deemed necessary by Parent OP or the Lenders for the consummation of such Financing; (ii) assisting in the preparation and updating of the information memoranda and other materials to be used in connection with the Financing and any related syndication efforts, including, as applicable, participating in due diligence and drafting sessions; (iii) cooperating in procuring any requisite rating for the Financing from an accredited rating agency; (iv) making the officers and advisors of the Group Companies available from time to time to attend and make presentations regarding their respective businesses; and (v) assisting in the preparation of definitive agreements and other certificates and documents, as may be reasonably requested in connection with the foregoing, provided, however, that with respect to all matters described in this AgreementSection 6.5(d) no Group Company shall be required to execute any document or make any statements, certifications, or analysis for the benefit of Parent REIT, Parent OP or Parent Sub or any other Person other than documents, statements, certifications and analyses to become effective immediately after the Closing.
Appears in 3 contracts
Sources: Contribution Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.), Contribution Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.), Contribution Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Financing. (a) Subject to From and after the terms and conditions date hereof until the earlier of the Completion or the termination of this AgreementAgreement pursuant to and in accordance with Article IX, in a timely manner so as not to delay the Completion, Parent shall use its reasonable best efforts to (i) take, or cause to be taken, all actions appropriate action, and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain consummate, no later than the Debt date the Completion is required to occur pursuant to this Agreement, the Financing on the terms set forth in the Debt Agreement and (ii) satisfy or cause to be satisfied (or waived) on a timely basis all conditions to funding described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunderAgreement. Parent shall not, without the Company’s prior written consentconsent of the Company, permit agree to, or permit, any amendment, supplementrestatement, replacement or modification to be made toamendment and restatement, or any waiver of any provision under, the Debt Commitment Letter if such amendmentreplacement, supplement, replacementor other modification of, modification or waiver or consent under, any provision of the Debt Agreement that would (Ai) reduces reasonably be expected to adversely affect the occurrence of Completion, (ii) reduce the aggregate amount of the cash proceeds from Financing below the Debt Financing or amount required at Completion, (Biii) imposes impose new or additional conditions precedent to the initial funding or otherwise expands any of the Financing or expand upon any existing conditions precedent to the receipt funding of the Financing described in the Debt Financing, or otherwise expands, amends or modifies any other provision Agreement that would make the funding of the Debt Commitment Letter Financing less likely to occur in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, any material respect or (yiv) adversely affect the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter or Agreement. Upon the definitive agreements with respect thereto (providedCompany’s written request, 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification restatement, amendment and restatement, replacement, supplement, modification, waiver or replacementconsent with respect to the Debt Agreement promptly following the effectiveness thereof.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent Agreement becomes unavailable regardless of the Companyreason therefor (as determined by Parent in its reasonable discretion), take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(di) Parent shall have notify the right Company in writing of such unavailability and the reason therefor and (ii) Parent shall use its reasonable best efforts, and shall cause each of its Subsidiaries to substitute use their reasonable best efforts, to obtain as promptly as practicable following the net cash proceeds received by Parent after occurrence of such event, alternative debt financing for any such portion from alternative sources (the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes“Alternative Financing”) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default underan amount sufficient, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, when taken together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have and the right to substitute commitments in respect other sources of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents funds immediately available to Parent, is sufficient Parent at the Completion to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement Financing Amounts and all on terms and conditions precedent to funding of such financing arethat, in respect of certainty of funding, either (x) are equivalent to (or more favorable to the Company Parent than) the conditions precedent set forth in the Debt Commitment LetterAgreement or (y) would not be expected to prevent, delay or impede Completion. Upon the Company’s written request, Parent shall deliver to supplement or replace the Debt Financing (“Alternative Debt Financing”). TrueCompany true, correct and complete copies of each all contracts pursuant to which any alternative financing commitment source shall have committed to provide any portion of the Alternative Financing promptly following the effectiveness thereof (with any fee letters or “flex” rights redacted in a customary manner as described in Section 6.2(A)(e)(ii)). In addition to the foregoing, the Parent may also obtain Alternative Financing at its sole discretion which replaces the Financing, so long as the Parent is able to give the representations set forth in Section 6.2(A)(e) with respect of to such Alternative Financing as at the date such Alternative Financing becomes effective (with references to “date hereof,” the “Financing,” “Financing Sources” and “Debt Financing Agreement” (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms like terms) in that do not adversely affect section deemed to have been replaced with references to the enforceabilitydate such Alternative Financing, availability the commitments thereunder and the agreements with respect thereto becomes effective).
(c) Parent shall provide the Company prompt written notice (i) of any expiration or conditionality termination of, or the aggregate amount of proceeds available underany material breach, default or violation by any party to, the Debt Agreement and (ii) of the receipt by Parent of any notice or other communication, in each case from any Financing contained therein redacted)Source with respect to any (x) material breach, will be promptly provided default, violation, termination or repudiation by any party to the CompanyDebt Agreement or (y) material dispute or disagreement between or among Parent, on the one hand, and the Financing Sources, on the other hand, including any dispute or disagreement with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Completion. In To the event extent requested in writing by the Company from time to time, Parent shall promptly provide the Company with updates on a reasonably current basis on the status of the Financing. Parent shall, to the extent not publicly filed, provide copies of all executed credit agreements and indentures and any New Debt Commitment Letter amendments, modifications, replacements or waivers relating to the Financing or any Indebtedness that is obtained, a takeout to the Financing (ior notice that such documents have been publicly filed).
(d) any reference Notwithstanding anything contained in this Agreement to the “Debt Financing” shall include contrary, Parent expressly acknowledges and agrees that its obligations under this Agreement, including its obligations to consummate the debt financing contemplated by Completion, are not conditioned in any manner upon Parent obtaining the Debt Commitment Letter as modified Financing or any other financing. To the extent Parent obtains Alternative Financing pursuant to clause (iiSection 7.6(b) belowor amends, (ii) replaces, supplements, modifies or waives any reference in this Agreement of the Financing, references to the “Financing,” “Financing Sources” and “Debt Commitment LetterAgreement” (and other like terms in this Agreement) shall be deemed to include refer to such Alternative Financing, the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger commitments thereunder and the transactions contemplated by this Agreementagreements with respect thereto, or the Financing as so amended, replaced, supplemented, modified or waived.
Appears in 2 contracts
Sources: Transaction Agreement (Avadel Pharmaceuticals PLC), Transaction Agreement (Alkermes Plc.)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent The Company shall use its reasonable best efforts to takeensure that as of the Closing Date, the Company has the funds necessary to consummate the transactions contemplated by the definition of the term Financing, and shall not, and shall not permit any of its Subsidiaries to, take or agree to take any action that is reasonably likely to prevent or in any material respect impair its ability to complete, or cause delay the Financing.
(b) In the event that all conditions 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 on the terms and conditions described in the Debt Commitment Letter pursuant to have been satisfied (or would be satisfied simultaneously with the terms thereof (including any “market flex” provisions) including using Closing), the Company shall use its reasonable best efforts to seek cause the Lender to enforce fund thereunder (including, taking enforcement action to cause the Lender to provide such financing). The Company shall not agree to or permit any amendment, supplement or other modification of, or waive any of its rights under under, the Debt Commitment Letter or any other agreements related to the Financing, in the event of a breach thereof by the financing provider(s) thereunder. Parent shall noteach case, without the CompanyBPW’s prior written consent, permit any amendmentexcept amendments, supplement, replacement supplements or modification other modifications thereof to be made to, or any waiver provide for the assignment of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount a portion of the cash proceeds from Financing to additional agents or arrangers and the Debt Financing granting to such persons of approval rights as are customarily granted to additional agents or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunnerswhich amendments, syndication agents supplements or similar entities so long as such action other modifications would not reasonably be expected to prevent, materially impede or materially delay the consummation of the Financing or prevent the Closing). Parent shall promptly deliver to the Company truetransactions contemplated by this Agreement; provided, complete and correct copies of that upon any such amendment, modification supplement or replacement.
(b) Parent shallmodification, and the Company shall cause its Affiliates and Representatives toprovide a copy thereof to BPW. Notwithstanding anything herein to the contrary, use its reasonable best efforts (A) the Company shall be permitted to maintain in effect replace the Debt Commitment Letter with an Alternative Financing Arrangement (provided as defined in the Commitment Letter) for not less than the full principal amount of the financing contemplated by the Commitment Letter; provided, that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that (including with respect to conditionality and amounts available to be borrowed by the Company on the Closing Date) are not materially no less favorable to Parent the Company than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis Letter (or obtain as otherwise agreed to in writing by BPW).
(c) The Company shall give BPW prompt written notice of any material breach by any party to the waiver of), and Commitment Letter (or any other commitments or definitive documentation in a manner that will not impede the ability respect of the parties to consummate Financing) of which the Merger, all conditions to receipt Company becomes aware or any termination of the full amount Commitment Letter (or any other commitments or definitive documentation in respect of the Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective TimeFinancing). In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent The Company shall keep the Company BPW informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (BPW Acquisition Corp.), Merger Agreement (Talbots Inc)
Financing. (a) Subject Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, the Debt Financing Commitment if such amendment, modification, waiver or replacement (i) (A) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing) or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the terms receipt of the Debt Financing, in each case in a manner that would reasonably be expected to (1) delay or prevent the Closing, (2) delay or impair the availability of the Debt Financing at Closing or impede the satisfaction of the conditions to obtaining the Debt Financing at Closing, or (3) otherwise adversely impact the ability of Purchaser to enforce its rights against other parties to the Debt Financing Commitment or the definitive agreements with respect thereto (collectively, the “Restricted Financing Commitment Amendments”) (provided that, subject to the limitations set forth in this Section 6.11, Purchaser may amend the Debt Financing Commitment to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitment as of the date hereof, but only if the addition of such additional parties, individually or in the aggregate, would not result in the occurrence of a Restricted Financing Commitment Amendment), or (ii) results in the early termination of the Debt Financing Commitment, and conditions of this Agreement, Parent 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 or proper to arrange and obtain consummate the Debt Financing on the terms and conditions described in the Debt Financing Commitment Letter pursuant and to cause the conditions described in clause (y) of the final proviso to the terms thereof (including any definition of “market flexMarketing Period” provisions) set forth in Section 1.01 to be satisfied as promptly as practicable, including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from maintain in effect the Debt Financing Commitment (including by complying with so-called “flex” provisions) until the funding of the Debt Financing at or prior to Closing, (B) satisfy on a timely basis (or obtain a waiver of) all conditions and covenants applicable to Purchaser to obtaining the Debt Financing at Closing as set forth therein, (C) negotiate, execute and deliver definitive agreements with respect to such Debt Financing on the terms and conditions (including the “flex” provisions) contemplated by the Debt Financing Commitment (and provide copies thereof to Seller), (D) fully pay any and all commitment fees or other fees required by the Debt Financing Commitment and (E) upon satisfaction of the conditions set forth in the Debt Financing Commitment, consummate the Debt Financing at or prior to Closing. In the event any portion of the Debt Financing becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the Debt Financing Commitment, Purchaser shall promptly notify Seller 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 to obtain alternative financing from alternative sources (x) with conditions to the funding of the Debt Financing not materially less favorable to the interests of Seller than those included in the Debt Financing Commitment and (y) in an amount sufficient to consummate the transactions contemplated hereby, including the payment of the Estimated Cash Consideration, the amounts to be paid pursuant to Section 3.05 (if any) and all related fees and expenses promptly following the occurrence of such event, and in any event prior to or on the Closing Date. Purchaser shall promptly deliver to Seller true and complete copies of all agreements pursuant to which any such alternative source shall have committed to provide Seller with any portion of the Debt Financing. Purchaser shall keep Seller reasonably informed and in reasonable detail with respect to all material developments concerning the Debt Financing. Without limiting the generality of the foregoing, Purchaser shall promptly (and, in any event, within one (1) Business Day) notify Seller in writing (1) of any breach or default (or any event or circumstance that, with or without notice, lapse of time or both could reasonably be expected to give rise to any breach or default) by any party to the Debt Financing Commitment or the definitive agreements with respect thereto, (2) of the receipt by Purchaser or any of its Affiliates or their respective employees, agents or representatives of any notice or other communication from any Person with respect to any (A) actual or potential breach, default, termination or repudiation by any party to the Debt Financing Commitment or any definitive agreement related thereto or any provision of the Debt Financing contemplated pursuant to the Debt Financing Commitment or any definitive agreement related thereto (including any proposal by any lender named in the Debt Financing Commitment or any definitive agreement related thereto to withdraw, terminate or make a material change in the terms of (including the amount of financing contemplated by) the Debt Financing Commitment) or (B) imposes new material dispute or additional conditions disagreement between or among any parties to the initial funding Debt Financing Commitment or otherwise expands any definitive agreement related thereto and (3) if for any reason Purchaser believes in good faith that there is a material possibility that it will not be able to obtain all or any portion of the conditions financing contemplated in the Debt Financing Commitment on the terms, in the manner or from the sources contemplated by the Debt Financing Commitment or the definitive agreements related thereto. References in this Agreement to “Debt Financing” shall include the financing contemplated by the Debt Financing Commitment as permitted by this Section 6.11 to be amended, modified or replaced (including, replacement with alternative financing and alternative financing commitments pursuant to this Section 6.11) and references to “Debt Financing Commitment” shall include such documents as permitted by this Section 6.11 to be amended, modified or replaced (including replacement with alternative financing commitments pursuant to this Section 6.11), in each case from and after such amendment, modification or replacement. Prior to the receipt consummation of the Debt Financing, Purchaser shall not, and shall not permit any of its Subsidiaries, to accept any offer for all or any substantial part of the capital stock of Purchaser or the Business.
(b) Prior to Closing, Seller and its Subsidiaries shall use their reasonable best efforts to provide to Purchaser, and shall use their reasonable best efforts to cause their respective employees, advisors and representatives to provide to Purchaser, all cooperation that is reasonably requested by Purchaser in connection with the Debt Financing, including: (i) participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective Financing Sources, investors and ratings agencies, and reasonably cooperating with the marketing efforts of Purchaser and its Financing Sources, in each case in connection with the Debt Financing, (ii) furnishing Purchaser and its Financing Sources with the Required Financial Information (it being understood that the failure to provide audited financial statements as of and for the year ended December 31, 2012 prior to March 30, 2013 shall not be deemed a breach of this Section 6.11(b)(ii)), (iii) assisting with the preparation of materials for rating agency presentations, bank information memoranda, and similar documents required in connection with the Debt Financing, (iv) assisting with the completion of the definitive financing documents and in taking such steps as may be necessary to perfect the liens and security interests to be granted as security for the Debt Financing in the assets of the Business; provided, that any such liens or security interests do not attach or otherwise expands, amends or modifies any other provision become effective prior to the occurrence of the Closing, (v) executing and delivering, on behalf of the Company and the Company Subsidiaries, any necessary pledge and security documents and otherwise reasonably facilitating the granting of a security interest (and perfection thereof) in collateral, guarantees, mortgages, other definitive financing documents or other certificates or documents as may reasonably be requested by Purchaser; provided that any obligations contained in all such agreements and documents shall be subject to the occurrence of the Closing and effective no earlier than the Closing, (vi) obtaining a certificate of the Chief Financial Officer of the Business with respect to solvency matters to the extent required by the Financing Sources, customary authorization letters with respect to the bank information memoranda and (vii) using reasonable best efforts to obtain legal opinions, surveys and title insurance at the expense of and as reasonably requested by Purchaser on behalf of the Financing Sources; provided, however, that nothing herein shall require such cooperation either to support any financing other than a debt financing in the form of a secured credit facility or to the extent it would interfere unreasonably with the Business or operations of Seller and its Subsidiaries; and provided, further, that Seller, its Affiliates and its and their respective officers, directors or employees shall not be required to authorize, execute, deliver or perform under any agreement with respect to the Debt Commitment Letter Financing that is not contingent upon the Closing or that would be effective prior to the Closing. Seller, on behalf of the Business, hereby consents to the use of the Business’s logos in connection with the Debt Financing contemplated by the Debt Financing Commitment; provided, that such logos are used solely in a manner that is not intended to, nor reasonably likely to, harm or disparage the Business, Seller or its Affiliates. Seller agrees that it shall consent to Purchaser’s publicly furnishing to the SEC, on Item 7.01 of Form 8-K, Required Financial Information (that is listed in clause (1) of the definition of “Required Financial Information”) solely to the extent necessary to permit syndication of the Term Loan B to lenders that would not participate in such syndication if they were to receive material non-public information.
(c) If the Marketing Period ends before, but the Closing Date has not occurred by, February 28, 2013, then Seller shall prepare and deliver, by no later than February 28, 2013, the consolidated unaudited balance sheet and consolidated unaudited statements of operations, cash flows and shareholders’ equity of the Business as of and for the year ended December 31, 2012. If the Marketing Period ends before, but the Closing Date has not occurred by, March 30, 2013, then Seller shall prepare and deliver, by no later than March 30, 2013, the consolidated balance sheet and consolidated statements of operations, cash flows and shareholders’ equity of the Business as of and for the year ended December 31, 2012, accompanied by an unqualified report thereon of the independent accountants of the Business.
(d) None of Seller, its Affiliates (other than the Company and the Company Subsidiaries after the Closing) and its and their employees, agents or 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 the Debt Financing or their performance of their respective obligations under this Section 6.11 and any information utilized in connection therewith. Purchaser shall, without set-off, indemnify and hold harmless Seller, its Affiliates and its and their employees, agents and 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 of the Debt Financing and the performance of their respective obligations under this Section 6.11 or any information utilized in connection therewith except to the extent arising from the gross negligence or willful misconduct of the Seller or its Affiliates. Purchaser shall, without set-off, promptly upon request of Seller, advance or reimburse (as requested) Seller and its Affiliates for all out-of-pocket costs (including those of its and their accountants, consultants, legal counsel, agents and other representatives) to be incurred or that have been incurred by Seller and its Affiliates in connection with their performance of this Section 6.11 or otherwise to support or cooperate with the Debt Financing.
(e) Prior to the Closing, Purchaser shall not (and shall not permit any of its Affiliates to) take any action, or enter into any transaction, or any agreement to effect any transaction that might reasonably be expected to (xi) delay or prevent impair the funding in full availability of the Debt Financing (at Closing or impede the satisfaction of the conditions to obtaining the Debt Financing) on the Closing DateFinancing at Closing, or (yii) otherwise materially and adversely affect impact the ability of Parent Purchaser to enforce its rights against other parties to the Debt Financing Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacementthereto.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Acquisition Agreement (Arris Group Inc), Acquisition Agreement (Arris Group Inc)
Financing. (a) Subject Each of the Parent Parties shall use, and shall cause its Affiliates to the terms and conditions of this Agreementuse, Parent shall use its commercially 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 or proper to arrange arrange, obtain and obtain consummate the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant (including, to the terms thereof (including extent required, the full exercise of any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter described in the event of a breach thereof by the financing provider(s) thereunder. Parent Commitment Letter, and shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement supplement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if to the extent that such amendment, supplement, replacement, modification or waiver (A) reduces (or could have the effect of reducing) the aggregate amount of the cash proceeds from Financing below an amount necessary for the Debt Financing Parent to be able to satisfy the Merger Amounts on the Closing Date, or (B) imposes new or additional material conditions to the initial funding or otherwise materially expands upon any of the conditions to the receipt consummation of the Debt FinancingFinancing on the Closing Date, or otherwise (C) expands, amends or modifies any other provision of the Debt Commitment Letter provision, in a manner materially adverse to the Company or that would reasonably be expected to (x) delay or prevent or make materially less likely the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, Date or (y) materially adversely affect impact the ability of any Parent Party to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (providedprovided that, that notwithstanding the foregoing subject to compliance with the other provisions of this Section 6.12(a), the Parent Parties may amend or otherwise modify the Debt Commitment Letter to add or replace additional lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closingbookrunners and agents). Parent shall promptly deliver to the Company true, complete and correct copies of any such material amendment, supplement, waiver, consent, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain replacement in effect respect of the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of)and, and 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 Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction request of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide the Company with such information and documentation to allow the Company to reasonably monitor the progress of such financing activities. The Parent Parties shall not agree to the Company copies withdrawal, termination, repudiation, reduction or rescission of all executed Debt Financing Agreements.
(c) Without limiting any commitment in respect of the foregoing, Parent agrees to notify the Company promptlyFinancing, and in any event within two (2) Business Days, if at any time prior shall not release or consent to the Closing Date (i) termination of the Debt obligations of the financing sources under the Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement ifLetter, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates toeach case, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation . For purposes of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained6.12, (i) any reference in this Agreement references to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant permitted to clause be amended, modified, supplemented or replaced by this Section 6.12(a) and (ii) below, (ii) any reference in this Agreement references to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded amendments, modifications, supplements or replacements permitted by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with this Section 6.14(a)(iii6.12(a).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Wheeler Real Estate Investment Trust, Inc.), Merger Agreement (Cedar Realty Trust, Inc.)
Financing. (a) Subject to the terms and conditions of this AgreementAgreement (including Section 5.18(d) hereof), Parent Purchaser shall, and shall cause its Subsidiaries to, use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper and advisable or proper to arrange consummate and obtain the Debt Financing on the terms and conditions (including the flex provisions) described in the Debt Commitment Letter pursuant to the terms thereof (including Financing Letters and any “market flex” provisions) related Fee Letter, including using its reasonable best efforts to seek to enforce (including through litigation) its rights under the Debt Commitment Letter Financing Letters in the event of a material breach thereof by the financing provider(s) thereunder. Parent shall notcounterparties thereto, and, without the Company’s prior written consentconsent of Clorox Parent (which shall not be unreasonably withheld or delayed), shall not permit any amendment, supplement, replacement material amendment or modification to be made to, or consent to any waiver of any provision or remedy under, the Debt Commitment Letter Financing Letters or any related Fee Letter, if such amendment, supplement, replacement, modification or waiver (Ai) reduces the aggregate amount of the cash proceeds Financing (including by changing the amount of fees to be paid or original issue discount) from that contemplated in the Debt Financing Letters, or (Bii) imposes new or additional conditions to the initial funding or other terms or otherwise expands expands, amends or modifies any of the conditions to the receipt of the Debt Financing, Financing or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter terms in a manner that would reasonably be expected to (x) delay or prevent the Closing Date, (y) make the timely funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing DateFinancing less likely to occur, or (yz) adversely affect impact the ability of Parent Purchaser to enforce its rights against the other parties to the Debt Commitment Letter Financing Letters or Fee Letter. For purposes of clarification, 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 foregoing shall not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under prohibit Purchaser from amending the Debt Commitment Letter and definitive financing agreements and any related Fee Letter to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, add or replace lender(s) (and Affiliates of such additional lender(s)) as a party thereto or (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any make such other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default changes that would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any taken as a whole, adversely impact the ability of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected Purchaser to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Companyhereby. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any Any reference in this Agreement to the (A) “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter Financing Letters as amended or modified pursuant to clause in compliance with this Section 5.18 and (iiB) below, (ii) any reference in this Agreement to the “Financing Letters” or “Debt Commitment Letter” shall be deemed include such documents as amended or modified in compliance with this Section 5.18(a). Purchaser’s obligations under this Section 5.18 shall include Purchaser’s reasonable best efforts to include consummate a senior notes offering using the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time items listed in question and each New Debt Commitment Letter to the extent then in effectSection 5.19(a)(iv)(A)(I), Section 5.19(a)(iv)(A)(II), and Section 5.19(a)(iv)(B) (iiias it applies to (Section 5.19(a)(iv)(A)(I) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii5.19(a)(iv)(A)(II)).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Armored AutoGroup Inc.), Purchase and Sale Agreement (Clorox Co /De/)
Financing. (a) Subject Parent will not agree to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to takeany amendment or modification to, or cause to be takengrant any waiver of, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights provision under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver consent of any provision under, the Debt Commitment Letter Company if such amendment, supplement, replacement, modification or waiver would (Ai) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or impose additional conditions to the initial funding conditions, or otherwise expands amend or modify any of the conditions in a manner that is adverse in any material respect to Parent or the Company, 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, (ii) delay the timing of the funding of the Debt Financing or prevent or make less likely to occur, the funding of the commitments thereunder, on the Closing Date, (iii) reduce the aggregate cash amount of the funding commitments thereunder, or (yiv) adversely affect impact the ability of Parent or Merger Sub to enforce its rights against any other parties party to the any Debt Commitment Letter or the definitive agreements documentation with respect thereto (providedthe foregoing clauses (i) through (iv), that the “Prohibited Changes”); provided that, without the consent of the Company, Parent may amend the Debt Commitment Letter to add or replace additional lenders, lead arrangers, bookrunners, syndication bookrunners and agents or similar entities to implement or exercise any of the “market flex” provisions contained in the Fee Letter so long as such action amendment would not reasonably be expected to impose additional conditions on the obligations of the Financing Sources or delay or prevent the Closing). Parent shall promptly deliver will not permit or consent to any waiver of any remedy under the Debt Commitment Letter or any early termination of the Debt Commitment Letter. In the event that all conditions contained in the Debt Commitment Letter have been satisfied, Parent will use reasonable best efforts to cause the Financing Sources to comply with their funding obligations thereunder. Notwithstanding the foregoing or any provision of this Agreement to the Company truecontrary, complete Parent will be entitled to replace the Debt Commitment Letter by entering into definitive documentation with respect to the Debt Financing on or prior to the Closing so long as such definitive documentation is on terms and correct copies of any such amendment, modification or replacement.
(b) conditions consistent with the Debt Commitment Letter and would not result in Prohibited Changes. Parent shall, and shall cause its Affiliates and Representatives to, will use its reasonable best efforts to (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided including any definitive documentation entered into in this Section 6.13connection therewith), (B) satisfy on a timely basis all conditions in the Debt Commitment Letter (including any definitive documentation entered into in connection therewith) applicable to negotiate Parent and enter into Merger Sub to obtaining the Debt Financing as promptly as practicable (other than any condition where the failure to be so satisfied is a direct result of the Company’s failure to furnish information to Parent or otherwise comply with its obligations under this Agreement), (C) promptly upon execution thereof, at the request of the Company, provide to the Company complete executed copies of any definitive agreements documentation with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment LetterFinancing, (CD) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, and (DE) to comply with fully enforce the counterparties’ obligations and its obligations rights under the Debt Commitment LetterLetter (including any definitive documentation entered into in connection therewith), and (E) including by suit or other appropriate proceeding, to consummate cause the lenders under the Debt Financing at or prior to the Effective Time. In the event that fund in accordance with their respective commitments if all conditions precedent expressly set forth to funding the Debt Financing in the Debt Commitment Letter (including any definitive documentation entered into in connection therewith) have been orsatisfied or waived. Parent will keep the Company reasonably informed on a timely basis of the status of Parent’s and Merger Sub’s efforts to arrange the Debt Financing and to satisfy the conditions thereof, including, upon funding Company’s reasonable request, (1) advising and updating the Company, in a reasonable level of detail, with respect to status, proposed Closing Date and material terms of the material definitive documentation for the Debt Financing and (2) providing copies of the current drafts of all such definitive documentation. If any portion of the Debt Financing will beotherwise becomes unavailable, satisfiedand such portion is reasonably required to fund the aggregate Merger Consideration and all fees, expenses and other amounts contemplated to be paid by Parent, Merger Sub or Surviving Corporation pursuant to this Agreement, Parent and Merger Sub will promptly arrange and obtain in replacement thereof alternative financing from alternative sources in an amount sufficient to consummate the Merger. Notwithstanding anything in this Section 5.3 to the contrary, solely to the extent Parent shall use their reasonable best efforts receive prior to enforce their rights underthe Closing Date sufficient cash proceeds that are available to consummate the Merger on the Closing Date, and cause Parent will have the Financing Sourcesright to substitute the proceeds of consummated equity, lenders and equity linked or convertible, exchangeable or debt issuances or other incurrences of debt for all or any portion of the other persons providing or committing amount contemplated to provide be provided by the Debt Financing to comply with their obligations under contemplated by the Debt Commitment Letter and definitive financing agreements and may reduce the amount of the commitments thereunder. Any reference in this Agreement to fund on or before the Effective Time the “Debt Financing” will include any such alternative financing or such replacement financing, any reference in this Agreement to the “Debt Commitment Letter” will include the commitment letter and the corresponding fee letter with respect to any such alternative financing or such replacement financing, and any reference in this Agreement to the “Financing Sources” will include the financing institutions contemplated to provide any such alternative financing or replacement financing. Parent shall will keep the Company informed on a current prompt basis and in reasonable detail of the status of its efforts to arrange the Debt FinancingFinancing and will, andupon the Company’s reasonable request, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoingalternative or replacement financing commitments and related fee letters, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior redacted to the Closing Date (i) same extent as copies of the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received delivered by Parent after the date hereof and on or prior to the Closing from consummated offerings or other incurrences of debt (date hereof. Parent acknowledges and agrees that its obligations hereunder, including notes) by Parent for all or any portion of its obligations to consummate the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does Transactions, are not result in a breach or default undersubject to, or violation ofconditioned on, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount receipt of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s Transactions or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreementother financing.
Appears in 2 contracts
Sources: Merger Agreement (Westlake Chemical Corp), Merger Agreement (Axiall Corp/De/)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent 5.14.1. Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to use its reasonable best efforts to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to (taking into account the terms thereof (including any relevant “market flex” provisions) flex “ provisions of the Fee Letter (as defined in the Debt Commitment Letter)), including using its reasonable best efforts to seek to enforce its rights under (a) maintain in effect the Debt Commitment Letter in accordance with its terms, (b) satisfy all conditions and covenants in the event of Debt Commitment Letter that are a breach thereof condition to the funding thereunder, in each case, that are within its control, (c) enter into definitive agreements with respect thereto on the terms and conditions contemplated by the financing provider(sDebt Commitment Letter (taking into account any “market flex “ provisions set forth in the Fee Letter), and (d) thereunderconsummate the Debt Financing at or prior to Closing on substantially the terms and conditions of the Debt Commitment Letter.
5.14.2. Parent Buyer shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter or the definitive agreements with respect thereto, if such amendment, supplement, replacement, modification or waiver would (Aa) reduces reduce the aggregate principal amount of the cash proceeds from the Debt Financing (unless, if required to effect the Closing on the terms set forth herein, Buyer agrees to use its cash on hand) or (Bb) imposes impose new or additional conditions to the initial funding or other terms or otherwise expands materially expand, amend or modify any of the conditions to the receipt of the Debt Financing, Financing or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter terms in a manner that would reasonably be expected to (xi) delay materially delay, impair or prevent the consummation of the transactions contemplated by this Agreement, (ii) make, in any material respect, the timely funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, Financing materially less likely to occur or (yiii) adversely affect impact, in any material respect, the ability of Parent Buyer to enforce its rights against other parties to the Debt Commitment Letter or to draw upon and consummate the definitive agreements with respect thereto (provided, that Parent may amend Debt Financing.
5.14.3. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in 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 delay or prevent the Closing). Parent shall promptly deliver Letters (other than due to the Company true, complete and correct copies failure of a condition to the consummation of the Debt Financing resulting from a breach of any such amendmentrepresentation, modification warranty, covenant or replacement.
(b) Parent agreement of Company or Holder Representative set forth in this Agreement), Buyer shall, and shall cause its Affiliates and Representatives toas promptly as practicable following the occurrence of such event, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate arrange and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) obtain from alternative sources alternative financing on the terms and conditions that are not materially less favorable to Parent than those contained in Buyer (taking into account the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions relevant “market flex” provisions set forth in the Debt Commitment Fee Letter), to consummate the Debt Financing at or prior to the Closingtaken as a whole, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly than those set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts in an amount at least equal to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or such unavailable portion thereof (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Alternate Debt Financing”). True, correct and complete copies of each alternative financing to obtain a new commitment in letter with respect of to such Alternative Alternate Debt Financing (each, a the “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case a copy of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will which shall be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (ia) any reference in this Agreement to the “Debt Financing” Financing shall include mean the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause subsection (iib) below, and (iib) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is or Letters that are not superseded by a New Debt Commitment Letter at the time in question and each the New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter or Letters to the extent then in effect.
5.14.4. Upon written request by the Company from time to time, Buyer shall apprise the Company on a reasonably current basis and in reasonable detail with respect to all material activity concerning the status of its efforts to arrange the Debt Financing. Without limiting the foregoing, Buyer shall notify the Company promptly, and in any event within two (e2) On Business Days after it becomes aware thereof, (a) of any breach or default by any party to any Debt Commitment Letter or definitive agreements with respect thereto, (b) of the receipt by Buyer of any written notice or other communication (other than negotiations of the definitive agreements with respect to the Debt Financing) from any Debt Financing Source with respect to any breach, default, termination or repudiation by any party to any Debt Commitment Letter or any definitive agreement related thereto of any provision of any Debt Commitment Letter or any definitive agreements with respect thereto or (c) if for any reason Buyer no longer believes in good faith that it will be able to obtain all or any portion of the Debt Financing. Buyer shall not enter into any agreement or undertaking that would reasonably be expected to materially impair, delay or prevent the consummation of the Financing.
5.14.5. The Company, the Company Subsidiaries and their respective representatives shall, at Buyer’s expense, use reasonable best efforts to cooperate in connection with the arranging, obtaining, syndication and consummation of any Debt Financing (including any Alternate Debt Financing) being arranged by Buyer or its Affiliates in connection herewith as may be reasonably requested by Buyer or the Debt Financing Sources (provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and the Company Subsidiaries); including reasonable best efforts with respect to (i) promptly providing to Buyer and the Debt Financing Sources the Required Bank Information and such other reasonably available financial and other information regarding the Company and any of the Company Subsidiaries as required under the Debt Commitment Letter or otherwise reasonably requested by the Buyer, any Debt Financing Source or prospective lender in order to syndicate or consummate the Debt Financing and delivering customary authorization letters in connection with the information memoranda, investor presentations, rating agency memoranda and similar documents, including, if the Closing has not occurred prior to March 30, 2016, audited consolidated financial statements of the Company and the Company Subsidiaries for the year ending December 31, 2015, (ii) furnishing at least five (5) Business Days prior to the Closing Date all required documentation and other information required by applicable governmental authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act of 2011, but in each case solely relating to the Company and the Company Subsidiaries, as applicable, (iii) reasonably facilitating the pledging of collateral on the Closing Date with respect to any pledge or grant that becomes effective on or after the Closing Date, Parent shall provide all funds required (iv) reasonably assisting in obtaining any corporate credit and family ratings and ratings in respect of the Debt Financing from any rating agencies contemplated by the Debt Commitment Letter, (v) obtaining customary consents of accountants for the use of their audit reports in any materials relating to effect the repayment Debt Financing and (vi) obtaining lien releases at the expense of and as reasonably requested by the Buyer or any Debt Financing Source. The Company hereby consents to the use of all indebtedness under of its and the Company Credit Agreement Subsidiaries’ logos in full in accordance connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company Credit Agreementor the Company Subsidiaries or the reputation or goodwill of the Company or any of the Company Subsidiaries. Notwithstanding any other provision set forth herein, subject the Company agrees that the Buyer may share non-public or confidential information regarding the Company and its business with the Debt Financing Sources, and that such Debt Financing Sources may share such information with potential financing sources in connection with any marketing efforts (including any syndication) in connection with the Debt Financing, provided that (i) the recipients of such information agree to compliance with Section 6.14(a)(iiicustomary confidentiality arrangements and (ii) the Buyer will be responsible for any actions (or inactions) by such recipients that would be deemed a breach of the Confidentiality Agreement as if Buyer had so acted (or not acted).
(f) Notwithstanding anything to 5.14.6. Buyer shall, promptly upon the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s written request of the Company or the Holder Representative reimburse the Company or the Holder Representative for all reasonable and documented out-of-pocket third-party costs and expenses incurred by the Company or the Holder Representative or any of its Affiliates’ obtaining funds their representatives in connection with the cooperation provided for in Section 5.14.5 (such reimbursement to consummate be made promptly and in any event within three (3) Business Days of delivery of reasonably acceptable documentation evidencing such costs and expenses) and shall indemnify and hold harmless the Merger Company, the Holder Representative and their respective representatives from and against any and all Losses suffered or incurred by them in connection with the transactions contemplated arrangement of the Debt Financing and any information utilized in connection therewith (other than information provided by the Company, the Holder Representative or any of their respective representatives or to the extent such Losses result from the gross negligence or willful misconduct of any of the Company, the Company Subsidiaries, the Holder Representative or their respective representatives). Notwithstanding anything in this AgreementAgreement to the contrary, the Company shall not be required to pay any commitment or similar fee or incur any other liability in connection with the Debt Financing prior to the Closing for which it is not reimbursed by Buyer.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Select Medical Corp)
Financing. (a) Subject to the terms and conditions of this Agreement, 5.10.1 Parent shall will 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, necessary or advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described Financing, including using reasonable best efforts to: 89887722_19 150326672.16
5.10.1.1. maintain in effect the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall and not, without the Company’s prior written consentconsent of the Company (which shall not be unreasonably withheld, delayed or conditioned), permit any amendment, supplement, replacement amendment or modification to be made to, or consent to any waiver of any provision or remedy under, and replace the Debt Commitment Letter Letter, if such amendment, supplementmodification, replacement, modification waiver or waiver replacement (a “Restricted Commitment Modification”): (A) reduces the aggregate amount of the cash proceeds from Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing) to an amount less than the amount necessary to consummate the Merger (unless the Equity Financing is increased by a corresponding amount) or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 Financing in a manner that would reasonably be expected to materially (x1) delay or prevent the Closing, (2) make the funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, less likely to occur or (y3) adversely affect impact the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto when required pursuant to this Agreement (provided, that (x) 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 who had not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect executed the Debt Commitment Letter as of the date hereof; and (provided that y) at the Debt Commitment Letter may be amendedCompany’s reasonable request, supplementedParent will keep the Company reasonably apprised of the status and terms and conditions of any amendments, replacedmodifications, modified waivers or waived as provided in this Section 6.13)replacements, (B) and will promptly furnish to negotiate and enter into definitive the Company copies of any agreements or other documentation with respect to such amendment, modification, waiver or replacement);
5.10.1.2. cause the Debt Commitment Letter Equity Financing to be consummated upon satisfaction (or waiver) of the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Equity Commitment Letter, (C) to Letter that are within its control;
5.10.1.3. satisfy on a timely basis (or obtain the a waiver of), and 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 Debt Financing at and the Closing set forth therein Equity Financing that are within its control or control;
5.10.1.4. negotiate, execute and deliver Debt Financing Documents that reflect the terms contained in the Debt Commitment Letter (including any “market flex” provisions related thereto), subject to its influence any amendments or modifications thereto that would not constitute a Restricted Commitment Modification; and, upon satisfaction of
5.10.1.5. in the event that the conditions set forth in the Debt Commitment LetterLetter and Sections 6.1 and 6.3 have been satisfied or, by its terms upon funding would be satisfied, cause the Financing Sources to consummate fund the full amount of the Debt Financing contemplated to be provided on the Closing Date at or prior to the Closing, .
5.10.2 Parent will (Di) to comply consult with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, Financing and (ii) promptly following request by the Company, provide to the Company with copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoingmaterial amendments, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware modifications or replacements of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or executed material definitive agreements related to any Debt of the Financing Agreement at 89887722_19 150326672.16 the reasonable request of the Company. Parent will give the Company prompt notice of the receipt of any written notice or (B) other written communication from any other Person with respect to any actual or alleged breach or repudiation by any party to the Debt Commitment Letter Letters of which Parent or its Affiliates becomes aware. Without limiting Parent’s other obligations under this Section 5.10, if a Financing Failure Event occurs or at any Debt Financing Agreement if, time Parent in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally good faith believes that it will not provide, be able to or it refuses is not reasonably likely to provide, be able to obtain all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount part of the Debt Financing, together with other cash and cash equivalents available in each case, to Parent, the extent such portion is sufficient necessary to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement and all conditions precedent (giving effect to funding any increase in the Equity Financing), Parent will (i) promptly notify the Company of such financing areFinancing Failure Event or circumstance and the reasons therefor, in respect of certainty of funding, equivalent (ii) use its reasonable best efforts to obtain (or more on terms not less favorable to the Company thanParent (as determined by Parent in good faith) the conditions precedent as those set forth in the Debt Commitment LetterLetter and the Debt Fee Letter as of the date hereof) alternative financing from alternative debt financing sources, in an amount sufficient, when taken together with the Equity Financing, and the available portion of the Debt Financing, to supplement or replace pay the Debt Financing Merger Consideration and consummate the Transactions, as promptly as practicable following the occurrence of such event, and (“Alternative Debt Financing”). Trueiii) use its reasonable best efforts to obtain, correct and complete copies of each when obtained, provide the Company with a copy of, a replacement debt financing commitment that provides for such alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricinginterest rates, original issue discount, economic and other “market flex” terms or commercially sensitive information redacted (none of which redacted provisions and other economic terms that do not would be reasonably expected to adversely affect the enforceabilityamount, availability conditionality, availability, timing or conditionality of, or the aggregate amount termination of proceeds available under, the Debt Financing contained therein redactedon the Closing Date)).
5.10.3 Upon any such amendment, will be promptly provided replacement, supplement or modification of the Commitment Letters in accordance with this Section 5.10, all references herein to the Company. In the event any New Debt “Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt FinancingLetter” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the or “Debt Commitment Letter” shall be deemed to ”, as applicable, will include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectmean such documents as so amended, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Datereplaced, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full supplemented or modified in accordance with this Section 5.10 and references to “Financing”, or “Debt Financing”, as applicable, will include and mean the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions financing contemplated by such Commitment Letter as so amended, replaced, supplemented or modified in accordance with this AgreementSection 5.10.
Appears in 2 contracts
Sources: Merger Agreement (SMTC Corp), Merger Agreement (SMTC Corp)
Financing. (a) Subject Cedar shall use, and shall cause the Cedar Subsidiaries to the terms and conditions of this Agreementuse, Parent shall use its their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 provided that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent Cedar may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities or otherwise replace or amend the Commitment Letter so long as such action would not reasonably be expected to delay or prevent the ClosingClosing or add conditions or otherwise materially restrict the availability of the Financing). Parent In the event that Cedar becomes aware that any portion of the Financing is unavailable in the manner or from the sources contemplated in the Commitment Letter, Cedar use its reasonable best efforts to obtain alternative financing for such portion from alternative sources. Cedar shall promptly deliver not agree to the Company true, complete and correct copies of nor permit any such amendment, modification or replacementwaiver (other than a waiver of a condition to the Financing) of the Commitment Letter, any other agreement, arrangement or understanding relating to the Financing or the definitive agreements relating to the Financing that is adverse to Cedar or Pine without Pine’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.
(b) Parent shallPine shall provide, shall cause the Pine Subsidiaries to provide, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain cause its and their Representatives to provide, such reasonable cooperation in effect connection with the Debt Commitment Letter (provided that arrangement of the Debt Commitment Letter Financing as may be amendedreasonably requested by Cedar, supplementedincluding participating in meetings and presentations, replacedproviding information, modified or waived as provided in this Section 6.13)documents, (B) to negotiate opinions and enter certificates, entering into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms agreements, and conditions other actions that are not materially less favorable or may be customary in connection with the Financing or necessary to Parent than those contained in the Debt Commitment Letter, (C) permit Cedar to satisfy on a timely basis (fulfill conditions or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on related fee letters; provided that none of Pine or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail any of the status of its efforts Pine Subsidiaries shall be required to arrange pay any commitment or other similar fee or enter into any definitive agreement or incur any other liability in connection with the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting All non-public or otherwise confidential information regarding either party obtained by the foregoing, Parent agrees other party pursuant to notify the Company promptly, and in any event within two paragraphs (2a) Business Days, 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 breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (Bb) any other party shall be kept confidential in accordance with the Confidentiality Agreement; provided, however, that Cedar and its Representatives shall be permitted to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any disclose information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof as necessary and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together consistent with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid customary practices in connection with the transactions contemplated Financing subject to customary confidentiality arrangements. Cedar shall indemnify and hold harmless Pine, the Pine Subsidiaries and their respective Representatives from and against any and all losses or damages suffered or incurred by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero them in connection with the preceding sentence, the obligations arrangement of the Company Financing and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid information utilized in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effecttherewith.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Embarq CORP), Merger Agreement (Centurytel Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent 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, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the The Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates Subsidiaries to, and shall use its commercially reasonable efforts to cause its Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided provide all cooperation that the Debt Commitment Letter may be amendedis necessary, supplemented, replaced, modified customary or waived as provided in this Section 6.13), (B) to negotiate advisable and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating Parent to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by assist Parent in cash, (y) Parent promptly notifies the Company arrangement of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid obtained in connection with the transactions contemplated by this Agreement and all conditions precedent to funding (it being understood that the receipt of such financing areis not a condition to the Merger); provided however, that nothing in this Section 7.08 shall require such cooperation or other action on the part of the Company, its Subsidiaries or their respective Representatives to the extent it would (A) unreasonably disrupt the conduct of the business or operations of the Company or its Subsidiaries or (B) require the Company, any of its Subsidiaries or any of their respective Representatives to enter into any agreement, take any corporate action or otherwise agree to pay any fees, reimburse any expenses or otherwise incur any liability (other than immaterial out-of-pocket expenses that shall be subject to reimbursement by Sub as set forth below) or give any indemnities prior to the Effective Time. Such cooperation shall include (i) preparing and furnishing all financial and other pertinent information regarding the Company and its Subsidiaries reasonably requested by Parent, (ii) reasonably facilitating the pledging of collateral, provided that no such documents or agreements shall be effective prior to the Effective Time, (iii) taking all corporate actions, subject to the occurrence of the Effective Time, reasonably requested by Parent to permit the consummation of such financing and (iv) furnishing Parent and any lenders involved with such financing, with all documentation and other information required by any Governmental Authority with respect to such financing under applicable “know your customer” and anti-money laundering rules and regulations. Sub shall, and Parent shall cause Sub to, promptly, upon request by the Company, reimburse the Company for all reasonable costs and expenses (including reasonable attorneys’ fees, but excluding, for the avoidance of doubt, the costs of the Company’s preparation of its annual and quarterly financial statements) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with such financing or pursuant to this Section 7.08(a), and shall 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 such financing and any information used in connection therewith or pursuant to this Section 7.08(a), except with respect to (x) any information provided by the Company or any of its Subsidiaries or (y) any fraud or intentional misrepresentation or willful misconduct by any such persons. Notwithstanding anything in this Section 7.08 to the contrary, the Company shall not be required under this Section 7.08(a) to cause its officers or employees to participate in any road shows or similar events related to such financing.
(b) The Company shall, and shall cause its Subsidiaries to, deliver all notices and take all other actions to facilitate the termination at the Effective Time of all commitments in respect of certainty the Existing Credit Agreement, the repayment in full on the Merger Closing Date of fundingall obligations in respect of the Indebtedness thereunder, equivalent and the release on the Merger Closing Date of any Liens securing such Indebtedness and guarantees in connection therewith. In furtherance and not in limitation of the foregoing, the Company and its Subsidiaries shall use commercially reasonable efforts to (or more favorable deliver to Parent prior to the Offer Closing an executed payoff letter with respect to the Existing Credit Agreement (the “Payoff Letter”) in form and substance customary for transactions of this type, from the applicable agent on behalf of the persons to whom such Indebtedness is owed, which Payoff Letter together with any related release documentation shall, among other things, include the payoff amount and provide that Liens (and guarantees), if any, granted in connection with the Existing Credit Agreement relating to the assets, rights and properties of the Company than) and its Subsidiaries securing or relating to such Indebtedness, shall, upon the conditions precedent payment of the amount set forth in the Debt Commitment Letterapplicable Payoff Letter at or prior to the Effective Time, to supplement or replace the Debt Financing (“Alternative Debt Financing”)be released and terminated. True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case The obligations of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified Company pursuant to clause (iithis Section 7.08(b) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed subject to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter Sub providing or causing to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide provided all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything such repayments at or prior to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this AgreementEffective Time.
Appears in 2 contracts
Sources: Merger Agreement (Popeyes Louisiana Kitchen, Inc.), Merger Agreement (Restaurant Brands International Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent 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 or proper to arrange consummate and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter, including using best efforts to (i) maintain in effect the Commitment Letter pursuant and, if entered into prior to the Closing, the definitive documentation with respect to the Financing contemplated by the Commitment Letter (the “Definitive Agreements”), (ii) negotiate and execute the Definitive Agreements on terms thereof and conditions contemplated by the Commitment Letter (including any “market flex” provisionsprovisions thereof) including using its reasonable best efforts or on such other terms and conditions that are in the aggregate, not materially less favorable to seek to enforce its rights under Parent than those contained in the Debt Commitment Letter and do not expand upon the conditions precedent set forth in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 make any portion of the funding in full of the Debt Financing (less likely to be obtained or satisfaction delay in any material respect the funding of the Financing and, upon execution thereof, deliver a copy thereof to the Company (which copy shall exclude and/or redact any references to fees contained therein), (iii) satisfy on a timely basis all conditions applicable to Parent and its Subsidiaries in the Commitment Letter and Definitive Agreements that are within its control and comply with its obligations thereunder and not take or fail to take any action that would be reasonably expected to prevent or impede or delay the availability of the Financing, (iv) take each of the actions required of the Company and its Subsidiaries in paragraphs (b)(i) through (b)(ix) below with respect to itself and its Subsidiaries, and (v) enforce its rights under the Commitment Letter and Definitive Agreements in the event of a breach by the Financing Sources that impedes or delays the Closing, including by seeking specific performance of the parties thereunder if necessary, unless Parent reasonably concludes that seeking specific performance is impracticable or not reasonably likely to succeed under such circumstances. In the event that all conditions to the Debt Financing) on the Closing DateFinancing have been satisfied, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts to cause the lenders and the other persons providing such Financing to fund such Financing on the Closing Date. Notwithstanding anything to the contrary herein, Parent shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under, the Commitment Letter or the Definitive Agreements, including to add additional lenders, agents or other parties to the Commitment Letter and/or the Definitive Agreements, and/or substitute other debt (but not equity financing) for all or any portion of the Financing from the same and/or alternative financing sources, including by electing to utilize its existing senior secured credit facility as a form of alternative financing (subject to obtaining the consent of the Required Lenders (as defined in such credit facility) prior to the consummation of the Merger), provided that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter or Definitive Agreements that amends the Financing and/or substitution of all or any portion of the Financing shall not (A) expand upon the conditions precedent to maintain the Financing as set forth in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)Letter, (B) to negotiate prevent or impede or delay the consummation of the Merger and enter into definitive agreements with respect to the Debt Commitment Letter other transactions contemplated by this Agreement or (the “Debt Financing Agreements”C) on the provide for terms and conditions (including any “flex” provisions) that are not are, in the aggregate, materially less favorable to Parent than those contained in the Debt Commitment Letter. Parent shall be permitted to reduce the amount of Financing under the Commitment Letter or Definitive 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, including cash on hand and the proceeds of loans under existing revolving credit facilities of Parent, to consummate the Merger and the other transactions contemplated by this Agreement (C) to satisfy on a timely basis (or obtain including the waiver ofpayment of the Required Refinancing Indebtedness), and provided further that such reduction shall not (I) expand upon the conditions precedent to the Financing as set forth in the Commitment Letter in a manner that will not impede the ability would reasonably be expected to make any portion of the parties funding of the Financing less likely to be obtained or delay in any material respect the funding of the Financing, (II) prevent or impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement, or (III) provide for other terms and conditions (including any “flex” provisions) that are, in the aggregate, materially less favorable to Parent than those in the Commitment Letter. If any portion of the Financing becomes unavailable or Parent becomes aware of any event or circumstance that makes any portion of the Financing unavailable, in each case, on the terms and conditions contemplated in the Commitment Letter and such portion is reasonably required to consummate the Merger, all conditions to receipt Merger and the other transactions contemplated by this Agreement (including the payment of the full Required Refinancing Indebtedness), Parent shall use its best efforts to arrange and obtain as promptly as practicable following the occurrence of such event alternative financing from alternative financing sources in an amount of the Debt 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, sufficient to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders Merger and the other persons providing transactions contemplated by this Agreement (including the repayment of the Required Refinancing Indebtedness), provided, that without the prior written consent of the Company (not to be unreasonably withheld), no such alternative financing (a) shall be equity financing or committing (b) shall be on terms and conditions (including any “flex” provisions and conditions to provide funding) that are not, in the Debt Financing aggregate, at least as favorable to comply with their obligations under Parent and the Debt Company as those in the Commitment Letter. Parent shall give the Company prompt oral and written notice (but in any event not later than 48 hours after the occurrence) of any material breach by any party to the Commitment Letter and definitive financing agreements and or Definitive Agreements or of any condition not likely to fund on be satisfied, in each case, of which Parent becomes aware or before any termination or waiver, amendment or other modification of the Effective Time the Debt FinancingCommitment Letter or Definitive Agreements. Parent shall keep the Company reasonably informed on a current basis and in reasonable detail of the status of its efforts effort to arrange the Debt Financing, and, promptly following request by the Company, Financing and shall provide to the Company copies of all executed Debt documents related to the Financing Agreements(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)). In the event that Parent commences an enforcement action to enforce its rights under the Commitment Letter or the Definitive 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, shall make Parent’s employees and Representatives (other than any of its Financing Sources) reasonably available to discuss the status of, and material developments with respect to, the Financing Action.
(cb) Without limiting The Company shall provide, and shall cause its Subsidiaries to provide, 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 and/or the foregoing, Parent agrees to notify Financing Sources in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company promptlyand its Subsidiaries), and in any event within two (2) Business Daysincluding, if at any time prior to the Closing Date but not limited to, (i) promptly providing information relating to the Debt Company and its Subsidiaries to the Financing Sources 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 as contemplated by the Commitment Letter is terminated for any reasonLetter, (ii) Parent becomes aware participating in a reasonable number of any breach or default meetings (including customary one-on-one meetings with the parties acting as lead arrangers for the Financing and senior management and Representatives, with appropriate seniority and expertise, of the Company), presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, (iii) assisting in the preparation of documents and materials, including, but not limited to, (A) by any customary offering documents, bank information memoranda, prospectuses and similar documents (including historical and pro forma financial statements and information) for any of the Financing, and (B) materials for rating agency presentations, (iv) cooperating with the marketing efforts for any of the Financing Source party (including consenting to the Debt Commitment Letter use of the Company’s and its Subsidiaries’ logos; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or any Debt of its Subsidiaries), (v) executing and delivering (or using reasonable best efforts to obtain from its advisors), and causing its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), customary certificates (including a certificate of the principal financial officer of the Company or any Subsidiary with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), legal opinions or other documents and instruments relating to guarantees and other matters ancillary to the Financing Agreement as may be reasonably requested by Parent as necessary and customary in connection with the Financing, (vi) assisting in (A) the preparation of and entering into one or more credit agreements, currency or interest hedging agreements or (B) the amendment of any other party of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements, in each case, on terms satisfactory to Parent and that are reasonably requested by Parent in connection with the Debt Commitment Letter Financing; provided that no obligation of the Company or any Debt of its Subsidiaries under any such agreements or amendments shall be effective until the Effective Time, (vii) as promptly as practicable, furnishing Parent and the Financing Agreement if, Sources with all financial and other information regarding the Company and its Subsidiaries as may be reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the case of this clause (B), such breach or default would reasonably be expected to affect the availability completion of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing as contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (wviii) using its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance and (ix) cooperating reasonably with Parent’s Financing Sources’ due diligence, to the aggregate amount extent customary and not unreasonably interfering with the business of the Debt Financing committed under Company; provided that, until the Debt Commitment Letter following such reductionEffective Time occurs, together with other cash and cash equivalents available to Parent, is sufficient neither the Company nor any of its Subsidiaries shall (1) be required to pay all amounts required any commitment or other similar fee, (2) have any liability or any obligation under any credit agreement or any related document or any other agreement or document related to be paid the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), (x3) the proceeds of such debt offerings or be required to incur any other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero liability in connection with the preceding sentenceFinancing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) or (4) be required to issue a notice of optional redemption for any outstanding series of notes of the Company or any of its Subsidiaries if the indenture governing such series of notes does not provide that such notice may be conditioned on the occurrence of the Effective Time unless, in the obligations case of clauses (1), (2) and (3), reimbursed or indemnified by Parent to the reasonable satisfaction of the Company; provided, further, that (I) all non-public or other confidential information provided by the Company or any of its Representatives pursuant to this Section 5.12 shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent shall be permitted to disclose such information to potential syndicate members during syndication, subject to customary confidentiality undertakings by such potential syndicate members and (II) the Company shall be permitted a reasonable period to comment on any documents or other information circulated to potential financing sources that contain or are based upon any such non-public or other confidential information. Parent (A) shall promptly, upon request by the Company, reimburse the Company for all reasonable out of pocket costs (including reasonable attorneys’ fees) incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries pursuant and their Representatives contemplated by this Section 5.12, (B) acknowledges and agrees that the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to Section 6.14 shall no longer be in effect. Furtherany person prior to the Effective Time under, Parent shall have the right to substitute commitments in respect of other financings for all Financing or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid that Parent may raise in connection with the transactions contemplated by this Agreement and (C) shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all conditions precedent to funding losses, damages, claims, costs or expenses suffered or incurred by any of such financing are, them in respect of certainty of funding, equivalent to (or more favorable to connection with the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case arrangement of the fee letterFinancing and any information used in connection therewith, with only the fee amountsunless such loss, pricingdamage, “market flex” provisions and other economic terms that do not adversely affect the enforceabilityclaim, availability cost or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to expense results from the Company. ’s or its Subsidiary’s gross negligence or willful misconduct.
(c) In the event any New Debt that the Commitment Letter is obtainedor Definitive Agreements are amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing in accordance with Section 5.12(a), or if Parent substitutes other financing for all or a portion of the Financing in accordance with Section 5.12(a), each of Parent and the Company shall comply with its covenants in Section 5.12(a) and (ib) any reference in this Agreement with respect to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter or Definitive Agreements, as applicable, as so amended, replaced, supplemented or otherwise modified pursuant and with respect to clause (ii) below, (ii) any reference in this Agreement such other financing to the “Debt Commitment Letter” shall be deemed same extent that Parent and the Company would have been obligated to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter comply with respect to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectFinancing.
(ed) On Parent acknowledges and agrees that neither the Closing Date, Parent shall provide all funds required obtaining of the Financing or any alternative financing is a condition to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Silgan Holdings Inc), Merger Agreement (Graham Packaging Co Inc.)
Financing. (a) Subject Parent’s, US Corp.’s and Merger Sub’s obligations hereunder are not subject to any conditions regarding Parent’s, US Corp.’s, Merger Sub’s or any other person’s ability to finance, or obtain financing for, the terms Transactions.
(b) From and conditions after the execution of this Agreement, Parent Parent, US Corp. and Merger Sub shall use its their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Financing Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent and shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made to, any replacement of all or any portion of any facilities (or commitments thereof) described in, or any waiver of any provision or remedy under, the Debt Commitment Letter Financing Letter, if such amendment, supplementmodification, replacement, modification replacement or waiver (Ai) reduces the aggregate amount of the cash proceeds from Financing (including by changing the Debt amount of fees to be paid or original issue discount except by operation of the “flex” provisions in the related fee letter) unless such reduction is replaced with Replacement Financing or cash on hand or (Bii) imposes new or additional conditions to the initial funding or otherwise expands expands, amends or modifies any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision portion of the Debt Commitment Letter Financing in a manner that would or would reasonably be expected to (xA) delay or prevent the Closing or the Closing Date, (B) make the funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, less likely to occur or (yC) adversely affect impact the ability of Parent Parent, US Corp. or Merger Sub, as applicable, to enforce its their rights against other parties to the Debt Commitment Financing Letter or the definitive agreements to be entered into with respect thereto to the Financing, including any right to seek specific performance of the Financing Letter or such definitive agreements. Subject to the limitations set out in the first sentence of this Section 6.12(b), Parent, US Corp. and Merger Sub may (provided1) amend, that Parent may amend supplement, modify, replace or substitute the Debt Commitment Financing Letter as in effect at the date hereof, including to (x) add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long who had not executed the Financing Letter as of the date of this Agreement, (y) increase the amount of Indebtedness and (z) replace all or a portion of the facility committed under the Financing Letter as in effect as of the date hereof with one or more new facilities under such action would not reasonably Financing Letter or under any new commitment letter or facility or (2) replace all or a portion of the Financing with substitute or replacement debt financing or equity financing (consistent with the equity financing described in Section 4.02(a) of the Parent Disclosure Letter) (any such new commitment or facility described in clause (z) above or Financing described in clause (2) above, a “Replacement Financing”), provided that any amendments, modifications or replacements of any Replacement Financing shall be expected subject to delay or prevent the Closingsame limitations that apply to the Financing Letter as set forth in the first sentence of this Section 6.12(b). Parent From and after the execution of this Agreement, Parent, US Corp. and Merger Sub shall promptly deliver use their respective reasonable best efforts to obtain a corporate credit rating from each of Standard & Poor’s Ratings Services and ▇▇▇▇▇’▇ Investor’s Services, Inc.
(c) Subject to the Company trueterms and conditions of this Agreement, complete each of Parent, US Corp. and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, Merger Sub will use its reasonable best efforts (A) to maintain in effect the Debt Commitment Financing Letter pursuant to its terms until the Merger is consummated and to obtain the Financing on the terms and conditions described in the Financing Letter, including using its reasonable best efforts (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (Bi) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) thereto on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment LetterFinancing Letter (including any applicable “flex” provisions contained in the related fee letter), (Cii) to satisfy all conditions on a timely basis (or obtain to obtaining the waiver of)Financing applicable to each of Parent, US Corp. and 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 Debt Financing at the Closing Merger Sub set forth therein in such definitive agreements that are within its control or control, (iii) to comply in all respects with its covenants and obligations under the Financing Letter and (iv) subject to Section 6.07, to enforce through exercise of all available remedies its influence and, rights under the Financing Letter in the event of a breach or other failure to fund by the Lenders. Parent shall give the Company prompt notice upon satisfaction becoming aware of any of the conditions set forth following: (A) any material breach or default of the Financing Letter by a party to the Financing Letter or definitive document with respect to the Financing of which they become aware; (B) the receipt of any written notice or other written communication from any Financing Source with respect to any breach, default, termination or repudiation by any party to the Financing Letter or any definitive document related to the Financing of any provisions of the Financing Letter or any definitive document related to the Financing and (C) if for any reason Parent, US Corp. or Merger Sub believes in good faith that they will not be able to obtain all or any portion of the Debt Commitment Letter, Financing required to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt FinancingTransactions. Parent shall keep the Company informed on a current reasonable basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and provide to the Company, upon its written request, copies of the definitive material documents related to the Financing (other than fee letters and any other documentation subject to confidentiality restrictions). Notwithstanding the foregoing, nothing in this Section 6.12(c) shall require Parent 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. Subject to the terms and conditions of this Agreement, in the event that all conditions in the Financing Letter have been satisfied or, upon funding, will be satisfied, Parent, US Corp. and Merger Sub shall use their reasonable best efforts to cause the Lenders to fund on the Closing Date the Financing required to consummate the Merger, the Subsequent Merger and the other Transactions. In the event that Parent, US Corp. or Merger Sub becomes aware of any event or circumstance that makes procurement of any portion of the Financing unlikely to occur in the manner or from the sources contemplated in the Financing Letter, Parent, US Corp. or Merger Sub shall, in addition to promptly notifying the Company in writing of such event or circumstance, use their respective reasonable best efforts to, as promptly as practicable, arrange any such portion (other than amounts that are replaced by Parent’s cash on hand and marketable securities) from alternative sources (such portion from alternate sources, the “Alternate Financing”) in an amount sufficient to consummate the transactions contemplated hereby; provided, however, that Parent, US Corp. and Merger Sub shall not be required to agree to terms and conditions (including any “flex” provisions) that are, in the aggregate, materially less favorable to Parent, US Corp. and Merger Sub than those contained in the Financing Letter (and the “flex” provisions contained in the related fee letter). For the avoidance of doubt, the syndication of any part of the Financing in accordance with the terms of the Financing Letter shall not be deemed to violate Parent’s obligations under this Agreement.
(d) Prior to the Closing, the Company shall provide, and shall cause the Company Subsidiaries to provide, and shall use its reasonable best efforts to cause its and their Representatives, officers and employees to provide, on a timely basis, all reasonable cooperation requested by Parent in connection with the arrangement of the Financing to the extent that such cooperation does not unreasonably interfere with the ongoing operations of the Company and the Company Subsidiaries, including (i) using reasonable best efforts to facilitate the provision of guarantees and pledge of collateral (effective as of the actual occurrence of Closing), (ii) providing customary financial and other pertinent information regarding the Company and the Company Subsidiaries and cooperating in the preparation of pro forma financial information for the Transactions (including information to be used in the preparation of an information package, offering memorandum, prospectus, prospectus supplement or similar document regarding the business, assets, operations, financial projections and prospects of Parent and the Company customary for such financing or reasonably necessary for the completion of the Financing), including the financial information required to be delivered pursuant to the Financing Letter and such other information as may be reasonably requested in writing by Parent to assist in preparation of customary offering or information documents to be used for the completion of the Financing, and(iii) reasonably cooperating with the marketing efforts for the Financing (it being acknowledged that the Company hereby consents to the reasonable use of the Company’s and the Company Subsidiaries’ logos provided that such logos are used in a manner that is not reasonably likely to harm or disparage the Company or their marks and on such other customary terms and conditions as the Company shall reasonably impose) and using commercially reasonable efforts to provide an introduction and access to the Company’s existing lenders in connection with any syndication efforts, (iv) providing copies of any recent appraisals, environmental reports, evidence of title (including copies of deeds, lease documentation, title insurance policies and/or commitments for title insurance, title opinions, surveys, and similar information), and similar information with respect to the properties and assets of the Company and the Company Subsidiaries that are in the Company’s possession and that are reasonably requested by Parent, (v) providing other reasonably requested customary certificates, opinions or documents, including a customary certificate of the principal financial officer of the Surviving Company (in his capacity as such) with respect to solvency matters, (vi) requesting such customary legal opinions and customary accountant comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) as may be reasonably requested by Parent, (vii) participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or underwriters, as applicable, for the Financing and their counsel and senior management and Representatives, with appropriate seniority and expertise, of the Company), presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies as are customary and reasonably requested by Parent, (viii) providing reasonable and customary assistance to Parent and its financing sources or underwriters, as applicable, in (A) the preparation of all credit agreements (including review of schedules for completeness), currency or interest hedging agreements or other agreements, offering documents, an offering memorandum, prospectus or prospectus supplement and other marketing and rating agency materials for the Financing or (B) the amendment or termination of any of the Company’s or the Company Subsidiaries’ existing credit agreements, currency or interest hedging agreements, or other agreements and the release of all collateral and termination of all security interests thereunder (including by negotiating a payoff letter in customary form satisfactory to Parent with respect to any and all obligations of the Company and the Company Subsidiaries under their existing credit facilities, a copy of which shall be delivered to Parent no less than five Business Days prior to the Closing Date), in each case, on terms satisfactory to Parent and that are reasonably requested by Parent in connection with the Financing provided that no obligation of the Company or any of the Company Subsidiaries under any such agreements or amendments shall be effective until the actual occurrence of the Effective Time, in each case it being understood and agreed that information and documents provided by the Company and the Company Subsidiaries may be delivered to the Financing Sources and their Representatives, (ix) using reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, including in connection with due diligence and preparation of pro forma financial information for the Transactions, (x) using reasonable best efforts to permit any cash and marketable securities of the Company and the Company Subsidiaries to be made available to Parent, US Corp. and Merger Sub at the Closing, (xi) cooperating reasonably with Parent’s financing sources’ or underwriters’, as applicable, due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company, (xii) furnishing Parent and the financing sources promptly following (and in any event no later than ten days prior to the Closing Date) with all documentation and other information required by any Governmental Entity with respect to the Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, (xiii) providing customary authorization letters to the financing sources authorizing the distribution of information to prospective lenders and other Financing Sources, and (xiv) to the extent reasonably requested by Parent, adopting customary corporate resolutions by the Company and the Company Subsidiaries to permit the completion of the Financing. All non-public or other confidential information provided by the Company or any of its Representatives pursuant to this Section 6.12 shall be (1) kept confidential in accordance with the Confidentiality Agreement, except that Parent and US Corp. shall be permitted to disclose such information to potential financing sources and to rating agencies during the syndication and marketing of the Financing subject to customary confidentiality undertakings by such potential financing sources and (2) supplied only to financial institutions or rating agencies or any of their respective representatives for use in connection with the Financing. Parent shall (A) promptly, upon request by the Company, provide to reimburse the Company copies for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ fees) incurred by the Company or any of the Company Subsidiaries in connection with the cooperation of the Company and the Company Subsidiaries contemplated by this Section 6.12 and (B) indemnify and hold harmless the Company, the Company Subsidiaries and their respective Representatives from and against any and all executed Debt reasonable and documented out-of-pocket losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with Third Party claims arising out of the arrangement of the Financing Agreementsand any information used in connection therewith, except with respect to any information provided in writing by the Company or any of the Company Subsidiaries or contained in the Company SEC Documents.
(ce) Without limiting For purposes of this Agreement, the foregoing, Parent agrees term “Financing” shall also be deemed to notify the Company promptly, and in include any event within two (2) Business Days, 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 breach or default (A) by any Alternate Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement ifand, in the case of this clause (BSection 6.12(d), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Replacement Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt term “Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall also be deemed to include any fee amendment, replacement, supplement or other modification thereto or waiver thereof permitted pursuant to this Section 6.12 and any commitment letter relating (or similar agreement) with respect to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectsuch Alternate Financing.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (SXC Health Solutions Corp.), Merger Agreement (Catalyst Health Solutions, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant Financing Letter, after giving effect to the market flex terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Fee Letter, and shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made toto (other than to amend the Financing Letter to add lenders, lead arrangers, book runners, syndication agents or similar entities who had not executed the Financing Letter as of the date of this Agreement), or any waiver of any provision or remedy under, the Debt Commitment Financing Letter or the Fee Letter, if such amendment, supplement, replacement, modification or waiver (Ai) reduces the aggregate amount of the cash proceeds from the Debt Financing or (Bii) imposes new or additional conditions to the initial funding or other terms or otherwise expands expands, amends or modifies any of the conditions to the receipt of the Debt Financing, Financing or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter terms in a manner that would reasonably be expected to (x) delay or prevent the Closing (y) make the timely funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, Financing less likely to occur or (yz) adversely affect impact the ability of Parent Buyer to enforce its rights against the other parties to the Debt Commitment Financing Letter or the definitive agreements with respect thereto (thereto; provided that Buyer shall have the right to substitute other financing for all or any portion of the Financing from the same and/or alternative financing sources; provided, further, that Parent may amend such substitution shall only be permitted if (i) the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action terms thereof would not be reasonably expected to delay or prevent the Closing or make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur and (ii) the conditions to the Financing set forth in the Financing Letter would not be expanded or modified in a manner that would reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of provided, still further, that any such amendmentsubstitute financing shall not obligate any of Seller or its Affiliates as a surety, modification guarantor or replacementindemnitor or to extend credit to any Person. Any reference in this Agreement to (A) “Financing,” shall include the financing contemplated by the Financing Letter as amended or modified in compliance with this Section 6.9(a) and (B) “Financing Letter,” and “Fee Letter” shall include such documents as amended or modified in compliance with this Section 6.9(a).
(b) Parent shall, and Buyer shall cause its Affiliates and Representatives to, use its reasonable best efforts (Ai) to maintain in effect the Debt Commitment Financing Letter (provided that in accordance with the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)terms and subject to the conditions thereof, (Bii) to negotiate and enter into all definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Financing Letter, including the market flex provisions in the Fee Letter, and (Ciii) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to such definitive agreements and consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent Buyer shall keep the Company informed on a current basis and in reasonable detail Seller reasonably apprised of the status of its efforts the Financing and developments with respect thereto (including giving Seller prompt notice of any material change with respect to arrange the Debt such Financing, and, promptly following request by the Company, ) and shall provide to the Company Seller copies of all executed Debt Financing Agreements.
(c) material definitive documents related to the Financing. Without limiting the generality of the foregoing, Parent Buyer agrees to notify the Company Seller promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (ix) the Debt Commitment Financing Letter is shall expire or be terminated for any reason, (iiy) Parent becomes aware any of any breach or default (A) by any Financing Source party the other parties to the Debt Commitment Financing Letter or any Debt Financing Agreement or (B) any other notify Buyer that such party no longer intends to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter provide financing on the terms set forth therein. Parent therein or (z) to Buyer’s knowledge (without a requirement of due inquiry), any of the other parties to the Financing Letter is or is alleged to be in breach or default thereunder.
(c) To the extent necessary to complete the transactions contemplated hereby, Buyer shall promptly provide any information reasonably requested use its reasonable best efforts to cause the parties providing Financing to fund on the Closing Date the Financing required to consummate the transactions contemplated hereby and the other transactions contemplated by the Company relating Financing Letter, including by taking enforcement action, if all conditions in the Financing Letter and all conditions to any circumstances referred to Closing contained in this Section 6.13(c). Parent shall notAgreement are satisfied or waived, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably upon funding will be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financingsatisfied.
(d) Parent If the Financing Letter shall have be terminated or modified in a manner materially adverse to Buyer, if the right to substitute Financing Letter shall be materially breached or repudiated by the net cash proceeds received by Parent after the date hereof and prior other parties to the Closing from consummated offerings Financing Letter, or other incurrences of debt (including notes) by Parent for all or if any portion of the Debt Financing by reducing commitments under becomes unavailable on the Debt Commitment terms and conditions contemplated in the Financing Letter (other than as a result of obtaining substitute debt financing in accordance with Section 6.9(a)) (such event, an “Original Financing Failure”), Buyer shall use its reasonable best efforts to arrange promptly to obtain alternative financing from alternative sources on terms and conditions not less favorable to Buyer than those contained in the Financing Letter and the Fee Letter and in an amount at least equal to the Financing or such unavailable portion thereof, as the case may be (the “Alternate Financing”), and to obtain a new financing commitment letter with respect to such Alternate Financing (the “New Financing Letter; ”), which shall replace the existing Financing Letter, provided that any such Alternate Financing shall not obligate any of Seller or its Affiliates as a surety, guarantor or indemnitor or to extend credit to any Person (v) such offering the terms described in this proviso “Prohibited Alternate Terms”). Buyer shall not execute a New Financing Letter or other incurrence consummate any Alternate Financing, without the written consent of debt does not result in a breach or default underSeller, or violation of, the Debt Commitment Letter, if (wi) the aggregate amount terms of the Debt New Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Alternate Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of fundingthe aggregate, equivalent to (or more less favorable to the Company thanSeller than the Financing Letter or the Financing (without giving effect to the Original Financing Failure), (ii) the terms thereof would be reasonably expected to delay or prevent the Closing or make the timely funding of the Alternate Financing or satisfaction of the conditions to obtaining the Alternate Financing less likely to occur, as compared to the Financing Letter and the Financing (without giving effect to the Original Financing Failure) or (iii) the conditions precedent to the Alternate Financing set forth in the Debt Commitment Letter, to supplement New Financing Letter would be expanded or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment modified in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.a
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Southern Union Co)
Financing. (a) Subject Parent shall use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary or advisable to consummate the terms Equity Financing on the Closing Date, and conditions of this Agreement, Parent 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 or advisable to arrange the Debt Financing in an amount necessary, advisable or proper together with the Equity Financing, to arrange fund the Financing Amounts and obtain to consummate the Debt Financing on the terms Closing Date, including the following:
(i) maintaining in full force and conditions described in effect the Debt Commitment Letter pursuant to the terms thereof (including and not permitting any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement amendment or modification to be made to, or not consenting to any waiver of any provision or remedy under, and not replacing, the Debt Commitment Letter (other than as contemplated by the Debt Commitment Letter or any Debt Fee Letter as in effect on the date hereof), in any case if such amendment, supplementmodification, waiver or replacement, modification or waiver : (A) reduces (or would reasonably be expected to have the effect of reducing) the aggregate amount of the cash proceeds from Debt Financing (including by changing the amount of fees to be paid or original issue discount in connection with the Debt Financing) (unless an equal amount from alternative financing sources is then made available) to an amount, together with the Equity Financing, less than what is necessary to fund the Financing Amounts or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the conditions to the funding of any of the Debt Commitment Letter Financing in a manner that would reasonably be expected to (x1) delay or prevent the Closing, (2) make the funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, materially less likely to occur or (y3) materially and adversely affect impact the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto when required pursuant to this Agreement (providedprovided that (x) so long as not otherwise prohibited by the other provisions of this Section 5.10, that for the avoidance of doubt, Parent may amend the Debt Commitment Letter and/or any Debt Fee Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would who had not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect executed the Debt Commitment Letter (provided that or the Debt Commitment Letter may be amended, supplemented, replaced, modified Fee Letters as of the date hereof; and (y) Parent shall reasonably promptly furnish to the Company copies of any executed versions of any agreements or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements other documentation with respect to such amendment, modification, waiver or replacement);
(ii) causing the Debt Equity Financing to be consummated upon satisfaction of the conditions contained in the Equity Commitment Letter Letter;
(iii) satisfying on a timely basis (or, if available, obtain waivers of) the “Financing Conditions;
(iv) negotiating, executing and delivering Debt Financing Agreements”) on Documents that reflect and are consistent with the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), Letter and 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 Debt Fee Letters (including “market flex” provisions (if any)) or on such other terms acceptable to the Financing at Sources;
(v) in the Closing set forth therein event that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, Sections 6.1 and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter 6.3 have been orsatisfied, upon funding of the Debt Financing will be, would be satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause causing the full amount of the Financing Sources, lenders and to be funded at or prior to the other persons providing or committing to provide the Debt Financing to comply with their obligations Closing; and
(vi) enforcing its rights under the Debt Commitment Letters in the event of a Financing Failure Event.
(b) Parent shall not amend, modify, waive or replace, or agree to amend, modify, waive or replace (in any case whether by action or inaction) any term of the Equity Commitment Letter and definitive financing agreements and to fund on or before without the Effective Time prior written consent of the Debt Financing. Company.
(c) Upon request of the Company, 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, promptly following request by the Company, provide Financing and any material developments with respect to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoingFinancing. As soon as reasonably practicable, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Financing Failure Event.
(d) Neither Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, affiliates shall take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent the consummation of all or any portion of the Debt Financing or Equity Financing.
(de) If any Financing Failure Event occurs, Parent shall have promptly notify the right Company thereof and use its reasonable best efforts to substitute the net cash proceeds received by Parent after the date hereof obtain, as promptly as practicable and in any event prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Outside Date, in consultation with the Company, on terms as favorable to Parent for all or any portion of as the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result terms in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following and the Debt Fee Letters (including “market flex” provisions (if any)) or as are reasonably available for financings of the type contemplated by the Debt Commitment Letter and the Debt Fee Letters in the debt markets at such reductiontime, together alternative debt financing (“Debt Replacement Financing”) in an amount that when added with other cash and cash equivalents available to Parent, is the Equity Financing would be sufficient to pay all amounts required the Financing Amounts; provided that, notwithstanding anything herein to the contrary but subject to the penultimate sentence of this Section 5.10, in no event shall reasonable best efforts be paid construed to require that Parent (A) pay any fees or original issue discount in connection with the transactions excess of those contemplated by this Agreement, the Debt Commitment Letter and the Debt Fee Letters (xincluding “market flex” provisions (if any)) as in effect of the proceeds of such debt offerings date hereof or (B) agree to pricing or other incurrences have been received economic terms that are less favorable (taken as a whole) than those contemplated by the Debt Commitment Letter and the Debt Fee Letters (including “market flex” provisions (if any)) as in effect of the date hereof. Parent in cash, (y) Parent promptly notifies shall deliver to the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment all contracts or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries other arrangements pursuant to Section 6.14 shall no longer be in effect. Further, Parent which any alternative source shall have the right committed to substitute commitments in respect of other financings for all or provide any portion of the Debt Replacement Financing from (provided that any fee letters in connection therewith may be redacted in a manner consistent with the Debt Fee Letters provided as of the date hereof). Notwithstanding anything else herein to the contrary, in no event shall the receipt or availability of any funds or financing (including, for the avoidance of doubt, the Financing) by Buyer or any Affiliate or any other financing or other transactions be a condition to any of Buyer’s obligations hereunder. Any Debt Replacement financing shall be subject to the same and/or alternative financing sources so long obligations as the aggregate amount of set forth in this Section 5.10 with respect to the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Patterson Companies, Inc.), Merger Agreement (Patterson Companies, Inc.)
Financing. (a) (i) Subject to the terms and conditions of this Agreement, Parent Vertical/Trigen shall, and shall cause its subsidiaries to, use its their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any the “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter ), contained in the event of a breach thereof by Commitment Letters as promptly as practicable taking into account the financing provider(santicipated Closing Date (after giving effect to and contemplating the Marketing Period) thereunder. Parent and shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if Letters, in each case, without the prior written consent of the Osmotica Shareholders’ Representative (such amendmentconsent not to be unreasonably withheld, supplementconditioned or delayed); provided, replacementthat, modification or waiver without the consent of the Osmotica Shareholders’ Representative, Vertical/Trigen may (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter Letters to add or replace lenders, lead arrangers, bookrunners, syndication agents agents, additional purchasers or similar entities who had not executed the Commitment Letters as of the date hereof, or (B) otherwise modify or amend, or agree to any waivers in respect of, either Commitment Letter so long as as, in each case, (1) such action would not reasonably be expected to (x) reduce the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount) in a manner that would cause the representation set forth in Section 4.08(c) to be untrue or inaccurate, (y) delay or prevent the Closing), or (z) impair the availability of the Financing on the Closing Date, and (2) the terms of such amendment, modification or waiver are not less beneficial to Vertical/Trigen, with respect to conditionality or enforcement, than those in the Commitment Letters as in effect on the date of this Agreement. Parent Vertical/Trigen shall promptly deliver to the Company true, complete and correct Osmotica copies of any such amendment, modification or replacement.
(b) Parent shallwaiver, and shall cause its Affiliates and Representatives topromptly consult with Osmotica in connection with any proposed amendment, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified modification or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect waiver pursuant to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this preceding clause (B), such breach or default would reasonably be expected to affect the availability . For purposes of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not5.12 and Sections 4.16 and 4.21, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement references to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter Letters as permitted to be amended or modified pursuant to clause (ii) belowby this Section 5.12(a), (ii) any reference in this Agreement and references to the “Debt Commitment LetterLetters” shall include such documents as permitted to be deemed to include the Debt Commitment Letter which is not superseded amended or modified by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii5.12(a).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Business Combination Agreement (Osmotica Pharmaceuticals PLC), Business Combination Agreement (Osmotica Pharmaceuticals LTD)
Financing. (a) Subject Parent and Acquisition Sub shall not permit any amendment, modification, supplement, or replacement to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter without the consent of the Company if such amendment, modification, supplement, replacement or waiver (i) reduces (or would reasonably be expected to have the effect of reducing) the aggregate amount of the Debt Financing, (ii) imposes new or additional conditions or otherwise expands or adversely amends or modifies any of the conditions to the terms Debt Financing, (iii) would modify the confidentiality provisions of the Debt Commitment Letter in any respect or (iv) would reasonably be expected to (A) materially delay, prevent, or impede the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) or the consummation of the Offer, the Merger and the other Transactions or (B) adversely impact the ability of Parent or Acquisition Sub to enforce its rights against the other parties to the Debt Commitment Letter or the Definitive Financing Agreements (as defined below) (provided that Parent and Acquisition Sub may amend or replace the Debt Commitment Letter to add or replace lenders, arrangers or similar entities so long as such action would not reasonably be expected to materially delay, prevent, or impede the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) or the consummation of the Offer, the Merger and the other Transactions, or adversely impact Parent’s or Acquisition Sub’s ability to enforce its rights under the Debt Commitment Letter). Parent and Acquisition Sub shall promptly deliver to the Company true and complete copies of any such amendment, modification or replacement. For purposes of this Agreement, references to “Debt Financing” shall include the financing contemplated by the Debt Commitment Letter as permitted to be amended or modified by this Section 7.13(a) and references to “Definitive Financing Agreements” or “Debt Commitment Letter” shall include such documents as amended or modified in accordance with this Section 7.13(a).
(b) Parent and Acquisition Sub shall use its their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and subject to the conditions described set forth in the Debt Commitment Letter pursuant to by the terms thereof Acceptance Time (including any “market flex” provisionsassuming, for the purposes hereof, that (a) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof that no Financing Extension Notices have been delivered, that no such Financing Extension Notices will be delivered and that the Acceptance Time will occur on the date, as reasonably estimated by the financing provider(s) thereunder. Parent shall notParties, without the Company’s prior written consenton which all conditions set forth on Annex II related to Antitrust Laws have been satisfied, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shallin the event that one or more Financing Extension Notices have been delivered, and shall cause its Affiliates and Representatives tothat the Acceptance Time will occur no later than 9:00 a.m. Eastern Time on the business day immediately following the then scheduled expiration date of the Offer), use its including by using their reasonable best efforts (Ai) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)Letter, (Bii) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment LetterLetter or on other terms (subject to the limitations contained in Section 7.13(a)) that would not reasonably be expected to materially prevent or delay the Offer, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt and the other Transactions or the date on which the Debt Financing could be obtained or make the funding of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject less likely to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at occur on or prior to the ClosingAcceptance Time (assuming, for the purposes hereof, that (a) in the event that no Financing Extension Notices have been delivered, that no such Financing Extension Notices will be delivered and (b) in the event that one or more Financing Extension Notices have been delivered, that the Acceptance Time will occur no later than 9:00 a.m. Eastern Time on the business day immediately following the then scheduled expiration date of the Offer), (Diii) to comply on a timely basis with (or obtain any waiver of) their covenants and obligations set forth in, and satisfy (or obtain a waiver of) on a timely basis all conditions to the funding in, the Debt Commitment Letter and the Debt Financing Agreements, in each case, as necessary to consummate the Transactions and satisfy all obligations of Parent and Acquisition Sub pursuant to this Agreement, including to pay the aggregate Offer Price at the Acceptance Time and the aggregate Merger Consideration on the Closing Date and satisfy the obligations of Parent under Section 3.4, and to pay any fees and expenses of or payable by Parent, Acquisition Sub, and the Surviving Corporation. In the event that all conditions contained in the Commitment Letter or the Definitive Financing Agreements have been satisfied, Parent shall cause the Debt Providers thereunder to comply with their respective obligations, including to fund the Debt Financing required to consummate the Transactions on the Closing Date, including to pay the aggregate Offer Price at the Acceptance Time and the aggregate Merger Consideration on the Closing Date and satisfy the obligations of Parent under Section 3.4, and to pay any fees and expenses of or payable by Parent, Acquisition Sub, and the Surviving Corporation (including by promptly commencing a litigation proceeding against any breaching Debt Provider to compel such Debt Provider to provide its portion of the Debt Financing or otherwise comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Letter or Definitive Financing at or prior to the Effective TimeAgreements). In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Acquisition Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations obligations, and enforce their rights, under the Debt Commitment Letter and definitive financing agreements Definitive Financing Agreements in a timely and to fund on or before the Effective Time the Debt Financingdiligent matter. 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, In each case promptly following request by upon the Company’s request to Parent and Acquisition Sub, Parent and Acquisition Sub shall (A) provide to the Company copies of all substantially final drafts and executed definitive agreements for the Debt Financing AgreementsAgreements (excluding any provisions related solely to fees and other economic terms), and (ii) keep the Company reasonably informed of the status of their efforts to arrange the Debt Financing.
(c) Without limiting In the foregoingevent that, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date Effective Time, (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent or Acquisition Sub becomes aware of any material breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement ifAgreement, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally provides notice that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
Commitment Letter, or (div) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under becomes unavailable for any reason, Parent will (A) use reasonable best efforts to obtain alternative debt financing (in an amount sufficient, when taken together with the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount available portion of the Debt Financing committed Financing, to consummate the Transactions on the Closing Date and satisfy all of the obligations of Parent and Acquisition Sub hereunder, including the payment of the aggregate Offer Price at the Acceptance Time and the aggregate Merger consideration on the Closing Date and Parent’s obligations under Section 3.4, and to pay any fees and expenses of or payable by Parent, Acquisition Sub, and the Surviving Corporation) from the same or other sources and which does not include any conditions to the consummation of such alternative debt financing that are more onerous than the conditions set forth in the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, Definitive Financing Agreements and (xB) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies notify the Company of such substitution unavailability and reduction the reason therefor; provided, that in no event will Parent or Acquisition Sub be under any obligation to disclose any information that (A) is subject to attorney-client or similar privilege if Parent or Acquisition Sub shall have used its reasonable best efforts to disclose such information in a manner that would not waive such privilege, or (B) would contravene any Law. In furtherance of and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero not in connection with the preceding sentence, the obligations limitation of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be foregoing, in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or event that (1) any portion of the Debt Financing from the same and/or alternative structured as high yield bond financing sources so long as the aggregate amount shall become unavailable, regardless of the Debt Financing, together with reason therefor and (2) all conditions contained in Annex II shall have been satisfied or waived (other cash and cash equivalents available to Parent, is sufficient to pay all amounts required than (x) any such conditions that by their nature are to be paid satisfied at the expiration of the Offer, but subject to the satisfaction or waiver of such conditions at the expiration of the Offer, and (y) those conditions the failure of which to be satisfied is attributable to a breach by Parent or Acquisition Sub of their representations, warranties, covenants or agreements contained in connection with this Agreement), and (3) the transactions term loan credit facilities contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to the Debt Commitment Letter (or more favorable to alternative facilities obtained in accordance with this Section 7.13) are available on the Company than) the terms and conditions precedent set forth described in the Debt Commitment LetterLetter (or replacements thereof), to supplement or replace then each of Parent and Acquisition Sub shall cause the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect proceeds of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely term financing to be used immediately in the case lieu of such affected portion of the fee letterhigh yield bond financing. For the purposes of this Agreement, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided references to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt any alternative financing contemplated by the arranged in compliance herewith (and any Debt Financing pursuant to any Debt Commitment Letter as modified pursuant or Definitive Financing Agreement remaining in effect at the time in question), and references to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” and “Definitive Financing Agreements” shall be deemed to include the any commitment letter (or similar agreement) with respect thereto and any definitive documents or agreements with respect thereto, respectively (and any Debt Commitment Letter which is not superseded by a New Debt Commitment Letter and Definitive Financing Agreements, respectively, remaining in effect at the time in question and each New Debt Commitment Letter to question). Parent shall provide the extent then in effect, and (iii) Company with prompt written notice of any reference in this Agreement to “fee letter” shall be deemed to include breach or default by any fee letter relating party to the Debt Commitment Letter that is not superseded or any Definitive Financing Agreements and the receipt of any written notice or other written communication from any Debt Provider or other financing source with respect to any breach, default, termination or repudiation by any New party to the Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effector any Definitive Financing Agreement of any provision thereof.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(fd) Notwithstanding anything to the contrary contained herein, (i) Parent’s and Acquisition Sub’s obligations hereunder are shall not subject to constitute a condition regarding Parent’s or any to the consummation of the Transactions, and (ii) compliance by Parent and Acquisition Sub with this Section 7.13 shall not relieve Parent of its Affiliates’ obtaining funds obligation to consummate the Merger and the transactions contemplated by this AgreementAgreement whether or not the Debt Financing is available.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Fairchild Semiconductor International Inc), Agreement and Plan of Merger (On Semiconductor Corp)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent 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, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights with respect to funding under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) subject to Parent’s rights under Section 7.12(b) which shall not require the Company’s consent, reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights with respect to funding against other parties to the Debt Commitment Letter 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 delay or prevent the Acceptance Time or the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.137.12), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Offer or the Merger, all conditions to receipt of the full amount of the Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights with respect to funding under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations with respect to funding under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c7.12(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all cash amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 7.13 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all cash amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each fee letter relating to each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii7.13(a)(vi).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Offer, the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Microsemi Corp), Merger Agreement (PMC Sierra Inc)
Financing. (a) Subject The Company shall use commercially reasonable efforts, and shall cause its Subsidiaries to use commercially reasonable efforts, and shall use its commercially reasonable efforts to cause its and its Subsidiaries’ respective officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives (collectively, the “Company Representatives”) to, at Parent’s sole expense, provide all cooperation that is reasonably necessary or customary and reasonably requested by Parent to assist Parent in the arrangement of bank financing and/or bond offerings for the purpose of financing the Merger, the fees and expenses incurred in connection therewith 74 and the other transactions contemplated hereby (the “Debt Financing”), including assisting with the preparation of materials for presentations, memoranda and similar documents required in connection with the Debt Financing; provided, however, that (x) nothing herein shall require such cooperation to the terms extent it would (A) unreasonably disrupt the conduct of the Company’s and conditions the Subsidiaries’ respective businesses, (B) require the Company or any of this the Subsidiaries or any of the Company Representatives to pay any fees or expenses or otherwise incur any liability or give any indemnities prior to the Effective Time (except to the extent any such fee or expense is conditioned on the consummation of the Merger or Parent has advanced the amount of such fees, expenses or liabilities to the Company or the Subsidiaries), and (C) require the preparation or delivery of (i) financial statements, other than those contemplated by Sections 5.1(c) and 5.1(d), or (ii) pro forma financial information or forecasts of the Company and the Subsidiaries and (y) any documentation executed by the Company or any of its Subsidiaries shall not become effective until the consummation of the Closing. Notwithstanding anything to the contrary provided herein or in the Confidentiality Agreement, Parent shall use be permitted to share all information subject to such agreement with its reasonable best efforts financing sources, subject 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 on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof customary confidentiality undertakings by the such financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements sources 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacementthereto.
(b) Parent shall, shall indemnify and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability hold harmless each of the parties to consummate Company, the Merger, Subsidiaries and their respective Company Representatives and any Seller Indemnified Party from and against any and all conditions to receipt of Losses suffered or incurred by them in connection with the full amount arrangement of the Debt Financing at and the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction performance of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its their respective obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financingthis Section 5.17. 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, andshall, promptly following upon request by of the Company, provide to reimburse the Company copies and the Subsidiaries for all out-of-pocket costs and expenses incurred by the Company or the Subsidiaries (including those of all executed Debt Financing Agreementstheir respective Company Representatives) in connection with the cooperation required by this Section 5.17.
(c) Without limiting the foregoing, Each of Parent and ▇▇▇▇▇▇ Sub acknowledges and agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date that (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability obtaining of the Debt Financing or (iii) is not a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior condition to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default underClosing, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.and
Appears in 2 contracts
Sources: Acquisition Agreement, Acquisition Agreement
Financing. (a) Subject Moon shall not, without the prior written consent of Comet: (i) permit any amendment or modification to, or any waiver of any provision or remedy under, the Financing Commitments if such amendment, modification, waiver or remedy (A) adds any new (or modifies adversely to Moon or Comet any existing) conditions to the terms consummation of all or any portion of the Financings, (B) reduces the aggregate amount of the Financings such that the aggregate funds that would be available to Moon on the Closing Date would not be sufficient to pay all amounts contemplated by this Agreement to be paid by it (including to refinance the Existing Debt) and conditions to perform its obligations hereunder, (C) limits or otherwise adversely affects the ability of Moon to enforce its rights against the other parties to the Financing Commitments or the Definitive Agreements or (D) would otherwise reasonably be expected to prevent, impede or delay the consummation of the Combination and the other transactions contemplated by this Agreement; or (ii) take any action to terminate the Financing Commitments. Moon shall promptly deliver to Comet copies of any amendment, modification or waiver to the Financing Commitments. Notwithstanding anything in this Agreement to the contrary, subject to the limitations set forth in this Section 7.20(a), Moon may amend, replace, supplement or otherwise modify the Financing Commitment Letters to add or replace Lenders, lead arrangers, agents or similar entities and the commitments in respect of the Financings that have not executed the Financing Commitment Letter as of the date of this Agreement, Parent Agreement and replace the debt commitments of the Lenders under the Financing Commitment Letter as of the date of this Agreement with debt commitments of such new entities.
(b) Moon shall use its reasonable best efforts to take, or cause to be taken, all actions and necessary to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing proceeds of the Financings on the terms and conditions described in the Debt Commitment Letter pursuant Financing Commitments or terms more favorable to the terms thereof (Moon, including any “market flex” provisions) including by using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s(i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)Financing Commitments, (Bii) to negotiate negotiate, execute and enter into deliver definitive agreements with respect to the Debt Commitment Letter Financings (the “Debt Financing Definitive Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, Financing Commitments and (Ciii) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate Financing Commitments and the Debt Financing at or prior to the Closing, (D) to Definitive Agreements and comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Timethereunder. In the event that all conditions precedent expressly set forth contained in the Debt Commitment Letter Financing Commitments or the Definitive Agreements have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub Moon shall use their reasonable best efforts to enforce their its rights under, thereunder and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing Lenders thereunder to comply with their respective obligations under thereunder to fund the Debt Commitment Letter and definitive financing agreements Financings to the extent required to consummate the transactions contemplated by this Agreement and to fund pay related fees and expenses on or before the Effective Time the Debt Financing. Parent Closing Date.
(c) Moon shall keep the Company Comet informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by Financings. In the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by Financings becomes unavailable (other than due to the Debt Commitment Letter on failure of any of the terms conditions set forth therein. Parent shall promptly provide any information reasonably requested by in Section 8.1 or Section 8.2 hereof), Moon will use reasonable best efforts to obtain alternative debt financing (in an amount sufficient, when taken together with the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any available portion of the Debt Financing.
(d) Parent shall have the right Financings, to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement and all to pay related fees and expenses) from the same or other sources and which do not include any conditions precedent to funding the consummation of such alternative debt financing are, in respect of certainty of funding, equivalent to (or that are more favorable to the Company than) onerous than the conditions precedent set forth in the Debt Financing Commitment Letter, to supplement or replace . For the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies purposes of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available underthis Agreement, the Debt term “Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt any commitment letter (or similar agreement) with respect to any alternative financing arranged in compliance herewith (and any Financing Commitment Letter which is not superseded by a New Debt Commitment Letter remaining in effect at the time in question question). Moon shall provide Comet with prompt oral and each New Debt Commitment Letter written notice of any breach or default by any party to the extent then in effectFinancing Commitments or any Definitive Agreement and the receipt of any written notice or other written communication from any Lender or other financing source with respect to any breach, and (iii) default, termination or repudiation by any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating party to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s Financing Commitments or any Definitive Agreement of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreementany provision thereof.
Appears in 2 contracts
Sources: Business Combination Agreement (Chicago Bridge & Iron Co N V), Business Combination Agreement (McDermott International Inc)
Financing. (a) Subject Parent 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 necessary, proper or advisable to obtain funds sufficient to fund the terms Merger Amounts. In furtherance and conditions not in limitation of this Agreementthe foregoing, Parent 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 necessary, proper or advisable or proper to arrange and obtain the Debt proceeds of the Financing on the terms and subject only to the conditions described in the Debt Commitment Letter pursuant as promptly as possible but in any event prior to the Outside Date, including by (i) maintaining in effect the Commitment Letter, (ii) negotiating and entering into definitive agreements with respect to the Financing (the “Definitive Agreements”) consistent with the terms thereof and conditions contained in the Commitment Letter (including any including, as necessary, the “market flex” provisionsprovisions contained in any related fee letter), (iii) including using satisfying on a timely basis all conditions in the Commitment Letter and the Definitive Agreements and complying with its obligations thereunder and (iv) enforcing its rights under the Commitment Letter. Parent shall comply with its obligations, and enforce its rights, under the Commitment Letter and Definitive Agreements in a timely and diligent manner.
(b) In the event any portion of the Financing contemplated by the Commitment Letter becomes unavailable, regardless of the reason therefor, Parent shall (i) promptly notify the Company in writing of such unavailability and the reason therefor and (ii) use reasonable best efforts to seek arrange and obtain as promptly as practicable following the occurrence of such event, alternative financing for any such portion from alternative financing sources (the “Alternative Financing”) in an amount sufficient, when taken together with the available portion of the Financing, to enforce its rights under fund the Debt Merger Amounts and which does not include any conditions to the consummation of such alternative financing that are more onerous than the conditions set forth in the Commitment Letter as of the date hereof. Parent shall keep the Company reasonably informed on a current basis of the status of its efforts to arrange and consummate the Financing. Without limiting the generality of the foregoing, Parent shall promptly notify the Company in writing if there exists any actual or, to the event knowledge of Parent, threatened breach, default, repudiation, cancellation or termination by any party to the Commitment Letter or any Definitive Agreement and a breach thereof copy of any written notice or other written communication from any Financing Party or other financing source with respect to any actual or threatened breach, default, repudiation, cancellation or termination by any party to the financing provider(sCommitment Letter or any Definitive Agreement of any provision thereof. The foregoing notwithstanding, compliance by Parent with this Section 6.20 shall not relieve Parent of its obligations to consummate the transactions contemplated by this Agreement whether or not the Financing is available.
(c) thereunder. Parent shall not, without the Company’s prior written consentconsent of the Company (such consent not to be unreasonably withheld, permit conditioned or delayed), consent or agree to any amendment, supplement, replacement termination or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter or the Definitive Agreements, if such amendment, supplement, replacement, modification or waiver (Ai) reduces decreases the aggregate amount of the cash proceeds from Financing (except to the Debt extent Parent has arranged Alternative Financing or Replacement Financing obtained in accordance with Section 6.20(b) or (Bd), as applicable), (ii) imposes new or additional conditions to the initial funding or otherwise expands 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 could reasonably be expected to (x) prevent, materially delay or prevent materially impede the funding in full consummation of the Debt Financing transactions contemplated by this Agreement, (or satisfaction of the conditions to the Debt Financingiii) on the Closing Date, or (y) materially and adversely affect impacts the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter or the definitive agreements with respect thereto Definitive Agreements, or (provided, that Parent may amend the Debt Commitment Letter to add iv) adds new (or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver adversely modifies any existing) conditions to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) ; provided, that Parent shall have and Merger Sub may amend the right Commitment Letter or the Definitive Agreements to substitute add lenders, lead and other arrangers, bookrunners, syndication and other agents or other entities who had not executed the net cash proceeds received by Parent after Commitment Letter as of the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material . Upon any amendment or modification to of the Debt Commitment Letter relating thereto will be promptly provided to requiring the consent of the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have provide a copy thereof to the right Company and, to substitute commitments the extent such amendment, replacement, supplement or modification has been made in respect compliance with this Section 6.20(c), the term “Commitment Letter” means the applicable Commitment Letter as so amended or modified. Notwithstanding the foregoing, compliance by Parent with this Section 6.20(c) shall not relieve Parent of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available its obligation to Parent, is sufficient to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement and all conditions precedent whether or not the Financing is available. To the extent Parent obtains Alternative Financing or Replacement Financing pursuant to funding of such financing are, in respect of certainty of funding, equivalent to Section 6.20(b) or (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”d), together with all related fee letters and associated engagement letters (solely in the case as applicable, or amends, replaces, supplements, modifies or waives any of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redactedpursuant to this Section 6.20(c), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement references to the “Debt Financing,” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Financing Parties” and “Commitment Letter” (and other like terms in this Agreement) shall be deemed to include refer to such Alternative Financing and/or Replacement Financing, the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger commitments thereunder and the transactions contemplated by this Agreementagreements with respect thereto, or the Financing as so amended, replaced, supplemented, modified or waived.
Appears in 2 contracts
Sources: Merger Agreement (Industrial Logistics Properties Trust), Merger Agreement (Monmouth Real Estate Investment Corp)
Financing. (a) 7.22.1. Subject to the terms and conditions of this Agreement, Parent Purchaser shall use reasonable best efforts to obtain the Financing on the terms and conditions set forth in the Financing Letter (or on terms which would not be reasonably expected to delay or prevent the Closing or make the funding of the Financing less likely to occur), and use its reasonable best efforts to (a) maintain in effect the Financing Letter and negotiate and execute definitive agreements with respect to the Financing Letter on the terms and conditions set forth in the Financing Letter (or on terms which would not be reasonably expected to delay or prevent the Closing or make the funding of the Financing less likely to occur), (b) satisfy on a timely basis all conditions applicable to Purchaser set forth in such definitive agreements that are within its reasonable control and not take or fail to take any action that would be expected to prevent, impede or delay the availability of the Financing, and (c) consummate the Financing contemplated by the Financing Letter at or prior to the Closing. In the event that all conditions in the Financing Letter have been satisfied or upon funding will be satisfied, Purchaser shall use its reasonable best efforts to take, or cause the lenders providing the Financing 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 fund on the terms Closing Date the Financing required to consummate the transactions contemplated by this Agreement and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to Purchaser shall otherwise enforce its rights under the Debt Commitment Financing Letter, including by seeking specific performance of the parties thereunder.
7.22.2. Purchaser shall not amend, alter, or waive, or agree to amend, alter or waive (in any case, whether by action or inaction), any term of the Financing Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver consent of any provision under, the Debt Commitment Letter Seller if such amendment, supplement, replacement, modification alteration or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or would reasonably be expected to delay or prevent the Closing or make the funding of the Financing less likely to occur; provided, however, that Purchaser may (Ba) imposes new replace and/or amend the Financing Letter so long as (i) the terms would not be reasonably expected to delay or additional conditions prevent the Closing or make the funding of the Financing less likely to the initial funding or otherwise expands any of occur and (ii) the conditions to the receipt Financing set forth in the Financing Letter as of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter Execution Date would not be expanded in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (Closing or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect a Capital Markets Transaction in lieu of or in addition to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on Financing Letter; and in any such event, Purchaser shall disclose to the Seller its intention to obtain such alternative financing or to engage in such Capital Markets Transaction and shall keep the Seller informed of the terms set forth thereinthereof. Parent The term “Financing or Capital Markets Transaction” shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
mean (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (wA) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Financing Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is extent not so superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter any alternative financing to the extent then in effect, and (iiiB) any reference Capital Markets Transaction. Purchaser shall promptly (and in this Agreement to “fee letter” shall be deemed to include any fee letter relating to event within two Business Days) notify the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at Seller of the time in question and each New Debt Commitment Letter to expiration or termination of the extent then in effectFinancing Letter.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Laboratory Corp of America Holdings), Asset Purchase Agreement (Genzyme Corp)
Financing. (a) Subject to the terms Each of Parent and conditions of this Agreement, Parent Merger Sub shall use its reasonable best efforts to takearrange, or cause to be taken, all actions obtain and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain consummate the Debt Financing on the terms and conditions described in the Debt Financing Commitment Letter pursuant Letters (or, if available, on other terms that are acceptable to the Parent in its sole discretion, so long as such other terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter do not include or result in the event of a breach thereof by the financing provider(s) thereunder. Parent Prohibited Modification), and shall not, without the Company’s prior written consent, not permit any amendment, supplementrestatement, replacement replacement, supplement or modification to be made to, or any waiver of any provision under, the Debt Financing Commitment Letter Letters if such amendment, supplementrestatement, replacement, supplement, modification or waiver (A) reduces (or would reasonably be expected to have the effect of reducing) the aggregate amount of the Financing to an amount less than, when taken together with the available portion of the Financing and cash proceeds from on hand at Parent, the Debt Company and its Subsidiaries (assuming such cash on hand of the Company and its Subsidiaries is equal to the Minimum Cash Amount), the amount required to pay for the Financing or Purposes (the “Required Amount”), (B) imposes new or additional conditions precedent to the initial funding of the Financing, or otherwise expands any of the conditions precedent to the receipt funding of the Debt Financing, Financing or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that (C) would reasonably be expected to (xi) material delay (taking into account Section 2.01) or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (yii) adversely affect impact the ability of Parent or Merger Sub or, in the case of the Equity Commitment Letters, the Company, to enforce its rights against other parties to the Debt Financing Commitment Letter or Letters (the definitive agreements with respect thereto effects described in clauses (providedA) through (C), collectively, “Prohibited Modifications”); provided that Parent may amend add (pursuant to the terms of the Debt Commitment Letter) as parties to the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents agents, managers or similar entities so long who have not executed the Debt Commitment Letter as such action would not reasonably of the date hereof. For purposes of this Section 6.17, references to “Equity Financing” shall include the financing contemplated by the Equity Commitment Letters as permitted to be expected amended, restated, modified, supplemented or replaced by this Section 6.17(a) and references to delay “Debt Financing” shall include the financing contemplated by the Debt Commitment Letter as permitted to be amended, restated, modified, supplemented or prevent the Closingreplaced by this Section 6.17(a). The parties agree that Parent shall promptly deliver may assign the Equity Commitment Letters and/or the Guarantees, in whole or in part, on the terms and subject to the Company true, complete and correct copies conditions set forth in Section 6.17(a) of the Parent Disclosure Schedule (any such amendmentassignment, modification or replacementan “Equity Assignment,” and the date thereof, the “Equity Assignment Date”).
(b) Each of Parent shall, and Merger Sub shall cause its Affiliates and Representatives to, use its reasonable best efforts to (A) to maintain in full force and effect the Debt Financing Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)Letters, (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain taking into account Section 2.01) all conditions to funding in the waiver of), Financing Commitment Letters and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, including using its reasonable best efforts to cause the Persons committing to fund the Financing to fund the Financing at the Closing, (C) enforce its rights under the Financing Commitment Letters and (D) to comply with its obligations under the Debt Financing Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective TimeLetters. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to and Merger Sub shall promptly notify the Company promptly, and in any event within two (2) Business Days, writing if at any time prior to the Closing Date (i) the Debt any Financing Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by Person party to any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Financing, (iii) Parent or Merger Sub or, to the knowledge of Parent or Merger Sub, any other Person party to the Financing Commitment Letters defaults or breaches any of the terms or conditions set forth in any Financing Commitment Letter, (iv) any event occurs that, with or without notice or lapse of time or both, would reasonably be expected to result in a default or breach of any of the terms or conditions set forth in any Financing Commitment Letter, or (v) Parent or Merger Sub receives any written notice or other written communication with respect to any (A) early termination of, repudiation by any Person party to or material default or material breach under any Financing Commitment Letter or (B) material dispute or disagreement between or among any Persons party to the Financing Commitment Letters with respect to the obligation to fund the Financing on the Closing Date in an amount necessary to fund the Required Amount.
(c) Prior to the Closing, the Company shall, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their respective Representatives to, provide such reasonable cooperation as is customary and reasonably requested by Parent in connection with the obtaining and arranging of the Debt Financing. Without limiting the generality of the foregoing, such reasonable best efforts in any event shall include:
(i) participating in a reasonable number of meetings (including meetings with prospective Debt Financing contemplated Sources), presentations, road shows, due diligence sessions and sessions with rating agencies, at reasonable and mutually agreed times and with reasonable advance notice;
(ii) to the extent required by the Debt Commitment Letter on Letter, facilitating the terms set forth therein. pledging of, and perfection of security interests in, collateral, effective no earlier than the Effective Time;
(iii) furnishing Parent as promptly as reasonably practicable the Company Financial Information and, following the delivery of a request therefor to the Company by Parent (which notice shall promptly provide any state with specificity the information requested), such other financial and other information regarding the Company and its Subsidiaries as is reasonably requested by Parent or the Debt Financing Sources and as is customarily required in connection with financings of a type similar to the Debt Financing;
(iv) in each case following Parent’s reasonable request, assisting Parent and Merger Sub in the preparation of (A) confidential information memoranda (including a version that does not include material non-public information) and other customary marketing materials required in connection with financings similar to the Debt Financing and (B) materials for rating agency presentations;
(v) following Parent’s reasonable request, using commercially reasonable efforts to cause directors and officers who will continue to hold such offices and positions from and after the Effective Time to execute and provide resolutions or consents of the Company relating and its Subsidiaries with respect to entering into the Definitive Financing Agreements and otherwise as necessary to authorize consummation of the Debt Financing; provided that no such resolution or consent shall become effective until the Effective Time;
(vi) providing (A) customary authorization and representation letters to the Debt Financing Sources with respect to marketing materials from a senior officer of the Company (which authorization and representation letters will become effective before the Effective Time) to the extent required in the Debt Commitment Letter and (B) a certificate of the chief financial officer of the Company in the form set forth on Annex I to Exhibit C of the Debt Commitment Letter (as in effect on the date hereof) with respect to solvency matters;
(vii) if requested by Parent, providing (A) at least five (5) Business Days prior to the Closing Date, all documentation and other information regarding the Company and its Subsidiaries as is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, to the extent requested by Parent in writing at least nine (9) Business Days prior to the anticipated Closing Date and (B) a certification regarding beneficial ownership as required by 31 C.F.R. §1010.230 to any circumstances referred Debt Financing Source that has requested such certification, to the extent requested by Parent in this Section 6.13(c). Parent writing at least five (5) Business Days prior to the anticipated Closing Date;
(viii) assisting reasonably in the preparation and execution of necessary and customary Definitive Financing Agreements (including one or more credit agreements, security agreements, mortgages and/or guarantees and the schedules and exhibits thereto) in connection with the Debt Financing or other certificates or documents as may reasonably be requested by Parent, in each case, to be held in escrow pending release by the Company at, and subject to the occurrence of, the Effective Time; and
(ix) to the extent required in the Debt Commitment Letter, using commercially reasonable efforts to ensure that the syndication efforts with respect to the Debt Financing benefit materially from the existing lending and investment banking relationships of the Company, it being understood and agreed that (x) such cooperation shall not, nor shall it permit not unreasonably interfere with the ongoing operations of the Company or any of its Affiliates toand (y) the provisions set forth in this Section 6.17(c) represent the sole obligation of the Company and its Affiliates with respect to the Debt Financing and no other provision of this Agreement (including the exhibits and schedules hereto) or the Debt Commitment Letter will be deemed to expand such obligations. All non-public or otherwise confidential information regarding the Company or its Affiliates obtained by Parent or Merger Sub or their Representatives pursuant to this Section 6.17(c) shall be kept confidential in accordance with the Confidentiality Agreement, without as modified by Section 6.19. The Company hereby consents to the prior written consent use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided that such logos are used solely in a manner that is not reasonably likely to harm or disparage the Company or its Subsidiaries in any respect.
(d) Notwithstanding anything herein to the contrary, (i) no directors or managers of the Company or its Affiliates (other than any director or manager who is continuing as a director or manager of any the Company or its Subsidiaries following the consummation of the Transactions) shall be required to pass resolutions or consents to approve or authorize the execution or delivery of the Debt Financing or to execute, deliver or enter into, or perform any agreement, certificate, arrangement, document or instrument with respect to the Debt Financing (other than the documents to be delivered pursuant to Section 6.17(c)(vi) and the prepayment and termination notices contemplated by Section 6.24), including any definitive agreements with respect to the Debt Financing (the “Definitive Financing Agreements”), (ii) no obligation of the Company, its Affiliates or any of their respective Representatives undertaken pursuant to the foregoing shall be effective until Closing (other than the authorization and representation letters to be delivered pursuant to Section 6.17(c)(vi)) and the prepayment and termination notices contemplated by Section 6.24), and (iii) none of the Company, its Affiliates or any of their respective Representatives shall be required to (A) pay any commitment or other similar fee in connection with the Debt Financing or incur any other cost or expense that is not promptly reimbursed by Parent in connection with the Debt Financing, (B) take any action actions to the extent such actions would unreasonably interfere with the ongoing business or enter into operations of the Company and its Affiliates, (C) take any transaction actions that would conflict with or violate the Company’s or its Affiliates’ organizational documents or any Laws, or that would reasonably be expected to materially impairresult in a violation or breach of, delay or prevent consummation default under, any material Contract to which any of all them are a party or by which any portion of their assets are bound, (D) give to any other Person any indemnities in connection with the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and Financing that are effective prior to the Closing from consummated offerings or (E) take any actions that would cause any representation or warranty in this Agreement to be breached or that would cause any closing condition set forth in Article 7 to fail to be satisfied or that would otherwise cause a breach of this Agreement. Nothing contained in this Section 6.17 or otherwise shall require the Company or its Affiliates to be an issuer or other incurrences of debt (including notes) by Parent for all or any portion of obligor with respect to the Debt Financing by reducing commitments under prior to the Debt Commitment Letter; provided that Effective Time.
(ve) such offering Notwithstanding this Section 6.17 or other incurrence of debt does not result anything else to the contrary in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) but subject to, and without limiting the proceeds effect of, Section 9.09, Parent and Merger Sub each acknowledges, affirms and agrees that it is not a condition to the Closing or to any of such debt offerings its other obligations under this Agreement that Parent or Merger Sub obtain any debt, equity or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company financing for or related to any of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and (including, without limitation, all conditions precedent to funding or any portion of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt any Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to Each of Parent and ▇▇▇▇▇▇ Sub acknowledges and agrees that the contrary contained herein, Parent’s only obligations hereunder are not subject to a condition regarding Parent’s of the Company or any of its Affiliates’ obtaining funds Affiliates or Representatives with respect to consummate any portion of the Merger and Financing prior to the transactions contemplated by Effective Time are the obligations expressly set forth in this Agreement. Parent shall, promptly upon request by the Company, reimburse the Company for all out-of-pocket costs and expenses incurred by the Company, its Affiliates or their respective Representatives in connection with such cooperation by the Company or any of its Affiliates and shall indemnify and hold harmless the Company, its Affiliates and their respective Representatives for and against any and all liabilities, losses, obligations, damages, costs and expenses of any kind (whether direct or indirect, known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, due or to become due and whether in contract, tort, strict liability or otherwise) suffered or incurred by them in connection with the arrangement of any Financing, any alternative financing, any action taken by them pursuant to this Section 6.17 and any information utilized in connection therewith, except, in each case, to the extent resulting from the gross negligence, fraud or willful misconduct of Company or any of its Subsidiaries or Representatives (the obligations set forth in this subsection (f) collectively, the “Reimbursement Obligations”).
Appears in 2 contracts
Sources: Merger Agreement (Tzuo Tien), Merger Agreement (Slaa Ii (Gp), L.L.C.)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to take(i) maintain in full force and effect the Equity Commitment Letter until the Transactions are consummated, (ii) satisfy, or cause to be takensatisfied, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt the closing of and funding under the full amount of the Debt Financing at the Closing set forth therein Equity Commitment Letter applicable to Parent and/or Merger Sub that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Lettercontrol, and (Eiii) to consummate the Debt Equity Financing at or prior to the Effective Time. In Time in accordance with the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding terms of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Equity Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing AgreementsLetter.
(cb) Without limiting Notwithstanding anything to the foregoingcontrary in this Agreement, Parent agrees from time to notify the Company promptly, time and in any event within two (2) Business Days, if at any time prior to the Closing Date Closing, Parent shall be entitled to adjust the number of Rollover Shares and/or the amount of the Equity Financing and, in connection therewith, amend the applicable Support Agreement and/or the Equity Commitment Letters, or enter into additional Support Agreements and/or Equity Commitment Letters, in each case solely to give effect to such adjustments; provided that (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party shall deliver a prior written notice to the Debt Commitment Letter or Company and any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement ifsuch notice shall be accompanied by, in the case of this clause any adjustment to the number of Rollover Shares, a true and complete copy of the applicable draft amended or additional Support Agreements, and in the case of any adjustment to the amount of the Equity Financing, a true and complete copy of the applicable draft amended or additional Equity Commitment Letters, (Bii) any amended or additional Equity Commitment Letters so entered into shall not impose new or additional conditions precedent or adversely change the conditions precedent set forth therein and shall be on other terms and conditions not materially less favorable (from the standpoint of the Company), such breach or default would reasonably be expected in the aggregate, to affect the availability of the Debt Financing or Parent and Merger Sub than those contained in comparable Equity Commitment Letters then existing, (iii) a counterparty indicates in writing after giving effect to such adjustment, and taking into consideration any such amended or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt additional Support Agreement and Equity Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation ofLetters, the Debt Equity Commitment Letter, (w) the Letters shall provide for an aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, proceeds that is sufficient for Parent and the Surviving Entity to pay all (x) the Merger Consideration, and (y) any other amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations consummation of the Company Transactions on the terms and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions conditions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effecthereby, and (iiiiv) any reference in this Agreement such adjustment would not otherwise reasonably be expected to “fee letter” shall be deemed to include any fee letter relating to prevent, delay or impair the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, ability of Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds Merger Sub to consummate the Merger and the transactions contemplated by this AgreementTransactions.
Appears in 2 contracts
Sources: Merger Agreement (Ma Baoli), Merger Agreement (BlueCity Holdings LTD)
Financing. (a) Subject to The Buyer shall, at the terms and conditions of this AgreementBuyer’s expense, Parent shall use its commercially reasonable best efforts to take(i) fully satisfy in all material respects, or cause to be takenon a timely basis, all actions terms, conditions, representations and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described warranties set forth in the Debt Commitment Letter pursuant to the terms thereof Letters and (including any “market flex” provisionsii) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunderLetters. Parent The Buyer shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification use commercially reasonable efforts to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Financings contemplated by the Commitment Letter (the “Debt Financing Agreements”) Letters on the terms and conditions that are not materially no less favorable to Parent the Buyer than those contained the Commitment Letters as soon as reasonably practicable but in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt Financing any event at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction Closing. The Buyer will furnish correct and complete copies of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior such executed definitive agreements to the ClosingCompany promptly upon request by the Company. At the Company’s request, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent Buyer shall keep the Company reasonably informed on a current basis and in reasonable detail of with respect to all material activity concerning the status of its efforts to arrange the Debt Financing, and, promptly following request Financings contemplated by the Company, provide to Commitment Letters and shall give the Company copies prompt notice of all executed Debt Financing Agreements.
(c) any material adverse change with respect to such Financings. Without limiting the foregoing, Parent the Buyer agrees to 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 any Commitment Letter is shall expire or be terminated for any reason, reason or (ii) Parent becomes aware of any breach or default (A) by any Financing Source financing source that is a party to the Debt any Commitment Letter notifies the Buyer that such source no longer intends to either provide or any Debt Financing Agreement or (B) any other party underwrite financing to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter Buyer on the material terms set forth therein. Parent shall promptly provide any information reasonably requested by Other than in connection with this Agreement, the Company relating to any circumstances referred to in this Section 6.13(c). Parent Buyer shall not, nor and shall it permit any of its Affiliates cause Buyer Parent and such entity’s direct and indirect subsidiaries not to, without the prior written consent of the Company, take any action or enter into any transaction transaction, including any merger, acquisition, joint venture, disposition (including the disposition of any capital stock of any Buyer Subsidiary), lease, contract or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion the Buyer’s obtaining of the Debt Financing.
Financing contemplated by any Commitment Letter. The Buyer shall not amend or alter, or agree to amend or alter, (di) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior Equity Commitment Letter in any manner adverse to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion Company without the prior written consent of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that Company or (vii) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the any Debt Commitment Letter following in any manner that would materially impair or delay or prevent the transactions contemplated by this Agreement without the prior written consent of the Company. If any Commitment Letter shall be terminated or modified in a manner materially adverse to the Buyer for any reason, the Buyer shall use commercially reasonable efforts to (i) obtain, and, if obtained, will provide the Company with a copy of, a new financing commitment that provides for at least the same amount of financing as contemplated by such reduction, together Commitment Letter as originally issued; (ii) enter into definitive agreements with other cash respect to such new financing; and cash equivalents available (iii) obtain funds under such agreements to Parent, is sufficient the extent necessary to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement; provided that the Buyer shall be under no obligation to obtain or seek to obtain any financing commitment containing terms or funding conditions less favorable to the Buyer or the Merger Sub than those included in such Commitment Letter (as determined in the Buyer’s good faith and reasonable discretion). In the event that, (x) after use of Buyer’s commercially reasonable efforts, Buyer is unable to obtain such new financing as described in the proceeds of such debt offerings or other incurrences have been received by Parent in cashimmediately preceding sentence, (y) Parent promptly notifies then the Company may, in its sole discretion, propose an alternative new financing that provides for at least the same amount of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification financing as contemplated by the Commitment Letters as originally issued on terms that are not less favorable to the Buyer and its Affiliates than those set forth in the Commitment Letters as originally issued (as determined in the Buyer’s good faith and reasonable discretion), and Buyer shall use commercially reasonable efforts to enter into definitive agreements with respect to such alternative new financing and obtain funds under such agreements to the extent necessary to consummate the transactions contemplated by this Agreement. In the event that a new Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the is executed in accordance with this Section 6.17, then such new Debt Commitment Letter have been reduced shall be the “Debt Commitment Letter” for purposes of this Agreement.
(b) The Company agrees to zero provide the Buyer with such cooperation in connection with the preceding sentencearrangement of the financings contemplated by the Commitment Letters as may be reasonably requested by the Buyer, including (i) participation in meetings, drafting sessions, due diligence sessions, management presentation sessions, “road shows” and sessions with rating agencies, (ii) using commercially reasonable efforts to prepare business projections and financial statements (including pro forma financial statements), (iii) assisting the obligations Buyer in preparing offering memoranda, private placement memoranda and similar documents, (iv) providing and executing documents as may reasonably be requested by the Buyer, including a certificate or certificates of the chief financial officer of the Company with respect to solvency and financial matters, (v) using commercially reasonable efforts to obtain surveys and title insurance as may be reasonably requested by the Buyer, and (vi) reasonably facilitating the pledge of collateral. The Company shall also use commercially reasonable efforts to cause legal counsel to provide customary legal opinions and an independent auditor of the Company to provide any unqualified opinions, consents or customary comfort letters with respect to its financial statements. The Company shall allow the Buyer’s representatives the opportunity to review and comment upon any such financial statements (including pro forma financial statements) in draft form and to allow such representatives access to the Company and supporting documentation with respect to the preparation of such financial statements and the independent auditors’ work papers relating to such financial statements. Notwithstanding the foregoing, (i) such requested cooperation shall not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries pursuant and (ii) neither the Company nor any of its Subsidiaries shall be required to Section 6.14 shall no longer be pay any commitment or other similar fee or incur any other liability in effectconnection with the financings contemplated by the Commitment Letters prior to the Effective Time (unless such fee or liability is subject to the immediately succeeding sentence or such commitment fee or liability is conditional on the occurrence of the Effective Time). FurtherThe Buyer shall, Parent promptly upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs and fees and expenses of counsel incurred by the Company or any of its Subsidiaries in connection with such cooperation to the extent such actions shall have been requested by the right Buyer.
(c) The Company shall use commercially reasonable efforts to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other make its cash and cash equivalents and the cash and cash equivalents of its domestic and foreign Subsidiaries available for deposit into the Exchange Fund at or prior to Parentthe Closing. The parties acknowledge if the Company shall use its commercially reasonable efforts to take the actions set forth on Schedule 6.17(c), is sufficient or use commercially reasonable efforts to pay all amounts required cause such actions to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing aretaken, in respect of certainty of funding, equivalent to (or more favorable to then the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in have exerted its commercially reasonable efforts for this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectpurpose.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Concerto Software Inc), Merger Agreement (Aspect Communications Corp)
Financing. (a) Subject Each of Parent and Purchaser shall use, and shall cause their affiliates to the terms and conditions of this Agreementuse, Parent 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 or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Financing Commitment, including using its reasonable best efforts (i) to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or negotiate and enter into 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions contained in the Financing Commitment (or on other terms acceptable to JPMorgan, provided such terms do not contain any conditions to funding the Merger that are not materially less favorable to Parent than those contained set forth in the Debt Financing Commitment Letterand would otherwise reasonably be expected to impair or delay the consummation of the Financing), (Cii) to satisfy on a timely basis (all other conditions applicable to Parent or obtain Purchaser, as the waiver of)case may be, and 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 Debt Financing at the Closing set forth therein that are within its the control of any of Parent or subject Purchaser and (iii) to its influence andconsummate the Financing contemplated by the Financing Commitment to fund the Merger, in each case upon satisfaction the terms contemplated by this Agreement (including by taking enforcement action to cause such lender or any other persons providing such Financing to fund such Financing). In the event that any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment LetterFinancing Commitment, to consummate without limiting the Debt Financing at or prior to rights of Parent and Purchaser under Sections 8.2(a) and 9.1(a)(iii), Parent shall promptly notify the Closing, (D) to comply with its obligations under the Debt Commitment LetterCompany, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub Purchaser shall use their reasonable best efforts to enforce obtain, as promptly as practicable following the occurrence of such event, any such portion from alternative sources (“Alternative Financing”) on terms that will still enable Purchaser to consummate the Transactions and that are not less favorable in the aggregate (as determined by Parent and Purchaser in their rights under, reasonable judgment) to them and cause the Company than those contained in the Financing SourcesCommitment. Each of Parent and Purchaser shall refrain from taking, lenders and the other persons providing directly or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on indirectly, any action that would or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability result in a failure of any of the Debt conditions contained in the Financing Commitment or (iii) a counterparty indicates in writing any definitive agreement related to the Financing. Neither Parent nor Purchaser shall agree to or orally that it will not providepermit any amendment, supplement or other modification of, or it refuses to providewaive any of their respective rights under, all any Financing Commitment or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company definitive agreements relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction Financing that would reasonably be expected to materially impair, impair or delay or prevent the consummation of all or any portion the Financing. Parent and Purchaser shall keep the Company reasonably informed of the Debt status of their efforts to obtain the Financing.
(db) Parent The Company shall have provide, shall cause the right Company Subsidiaries to substitute the net cash proceeds received by Parent after the date hereof provide and prior shall use its reasonable best efforts to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) cause its and their Representatives to provide, such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid reasonable cooperation in connection with the transactions contemplated arrangement of the Financing as may be reasonably requested by this AgreementParent and Purchaser, including (i) participation in meetings, drafting sessions, presentations, road shows and due diligence, (xii) using reasonable best efforts to furnish Parent and Purchaser and the proceeds of such debt offerings or financing sources with financial and other incurrences have been received pertinent information regarding the Company as may be reasonably requested by Parent and Purchaser to consummate the Financing, including, without limitation, all financial statements and financial data 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 cashprivate placements pursuant to Rule 144A promulgated under the Securities Act, including, without limitation, (yA) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations unaudited financial statements of the Company and its consolidated Subsidiaries pursuant to Section 6.14 shall no longer as of and for the three and nine months ended September 30, 2006, (B) audited financial statements of the Company and its consolidated Subsidiaries as of and for the year ended December 31, 2006, together with the report of KPMG LLP, independent public accountants thereon, (C) unaudited financial statements of the Company and its consolidated Subsidiaries for the three months ended March 31, 2007 and for any subsequent interim period as may be reasonably requested by the financing sources and (D) all other financial statements for completed or pending acquisitions that may be required under Regulation S-X (collectively, the “Required Financial Statements”), (iii) assisting Parent and Purchaser in effect. Further, Parent shall have the right to substitute commitments in respect preparation of (A) an offering document and other financings informational and marketing materials and documents for all or any portion of the Debt Financing from and (B) materials for rating agency presentations, (iv) reasonably cooperating with the same and/or alternative marketing efforts of Parent and Purchaser and the financing sources so long as the aggregate amount for any portion of the Debt Financing, together with other cash (v) reasonably facilitating the pledging of collateral and cash equivalents available execution and delivery of definitive financing documents and customary deliverables and (vi) using reasonable best efforts to Parentobtain accountants’ comfort letters, is sufficient accountants’ consent letters, legal opinions, surveys and title insurance as reasonably requested by Parent and Purchaser; provided that none of the Company or any of the Company Subsidiaries shall be required to pay all amounts required to be paid any commitment or other fee or incur any other liability in connection with the transactions contemplated Financing prior to the Effective Time; and provided further that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and the Company Subsidiaries. Parent and Purchaser shall, promptly upon request by this Agreement the Company, reimburse the Company for all reasonable out-of-pocket costs incurred by the Company or any of the Company Subsidiaries in connection with such cooperation. Parent and Purchaser shall, on a joint and several basis, indemnify and hold harmless the Company and the Company Subsidiaries from and against any and all conditions precedent losses or damages suffered or incurred by them in connection with the arrangement of the Financing and any information utilized in connection therewith.
(c) Promptly upon the Company’s delivery to funding Parent or Purchaser of such financing areany Required Financial Statements, in respect of certainty of funding, equivalent to (or more favorable to the Company than) shall file with the conditions precedent set forth in the Debt Commitment LetterSEC on Form 10-K or Form 10-Q, to supplement as applicable, such audited financial statements or replace the Debt Financing (“Alternative Debt Financing”). Trueunaudited interim financial statements, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in as the case may be, of the fee letter, with only the fee amounts, pricing, “market flex” provisions Company and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter its consolidated Subsidiaries to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is such Required Financial Statements have not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectbeen previously so filed.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (World Air Holdings, Inc.), Merger Agreement (Global Aero Logistics Inc.)
Financing. (a) Subject to the terms Parent and conditions of this Agreement, Parent Opco shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Bank Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Letter, including using its commercially reasonable best efforts (i) to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the negotiate 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, therein and (Cii) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions applicable to receipt of the full amount of the Debt Financing at the Closing set forth therein Parent and Opco in such definitive agreements that are within its the control or subject of Parent and Opco. Parent and Opco shall use commercially reasonable efforts to its influence andcomply with their respective obligations, upon satisfaction and enforce their respective rights, under the Commitment Letter. In the event that any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter, Parent and Opco shall use commercially reasonable efforts to obtain any such portion from alternative sources; provided, however, that in the event that any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter as a result of a failure to satisfy any of the conditions set forth in paragraph (e) of Exhibit B to the Debt Commitment Letter, Parent and Opco shall use best efforts to consummate obtain any such portion from alternative sources. Notwithstanding the Debt Financing at or prior foregoing, Parent and Opco shall be under no obligation to obtain any alternative financing unless it can be obtained on substantially similar economic terms (to Parent, Opco and the Closing, (DEquity Investor) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly as those set forth in the Debt Commitment Letter. Parent shall give the Company prompt notice of any breach by any party to the Commitment Letter have been or, upon funding or any termination of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt FinancingLetter. 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will shall not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates topermit, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentencemade to, or any waiver under, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). Truein each case, correct which would materially and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or likelihood that the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), contemplated thereby will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by obtained on a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effecttimely basis.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Specialty Laboratories Inc), Merger Agreement (Ameripath Inc)
Financing. (a) Subject to the terms Each of Parent and conditions of this Agreement, Parent Merger Sub shall use its commercially 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 or proper to arrange consummate and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant Letter, including using commercially reasonable efforts to (A) maintain in effect the Debt Commitment Letter, (B) satisfy on a timely basis all conditions applicable to Parent and Merger Sub to obtaining the Debt Financing that are within their control, (C) negotiate definitive agreements with respect thereto on the terms thereof and conditions contained in the Debt Commitment Letter (including any “market flex” provisions) including using its reasonable best efforts to seek to and (D) enforce its their rights under the Debt Commitment Letter in Letter. In the event that all the conditions to the Debt Financing have been satisfied or waived, each of a breach thereof by Parent and Merger Sub shall use its commercially reasonable efforts to cause the financing provider(s) thereunderlenders providing the Debt Financing to fund the Debt Financing required to consummate the Offer on or prior to such time as Merger Sub is required to accept for payment and pay for shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer. Parent shall not, and shall not permit Merger Sub to, agree to or permit any amendment, replacement, supplement or other modification of, or waive any of its rights under, the Debt Commitment Letter or any definitive agreements related to the Debt Commitment Letter (including any and all fee letters), in each case, without the Company’s prior written consent, permit except any such amendment, supplementreplacement, replacement supplement or other modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 that amends the Debt Financing in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 prevent or materially impede or delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability consummation of the parties to consummate Offer, the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control Merger or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement. Upon any such amendment, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cashreplacement, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment supplement or modification to of the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection accordance with the preceding sentencethis Section 6.14(a), the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the term “Debt Commitment Letter” shall be deemed to include mean the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectas so amended, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Datereplaced, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full supplemented or modified in accordance with the Company Credit Agreement, subject to compliance with this Section 6.14(a)(iii6.14(a).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (King Pharmaceuticals Inc), Merger Agreement (Alpharma Inc)
Financing. (a) Subject to The Parent Entities and the terms Merger Subs shall, and conditions shall cause each of this Agreementtheir respective Affiliates to, Parent shall use its reasonable best efforts to take, obtain and consummate the Equity Financing at or cause prior 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 Effective Time on the terms described in, and subject only to the conditions described in expressly set forth in, the Debt Equity Commitment Letter pursuant delivered to the terms thereof (including any “market flex” provisions) Company Entities on or prior to the date hereof, including using its reasonable best efforts to seek maintain in full force and effect the Equity Commitment Letter. Without limiting the generality of the foregoing, in the event that all conditions contained in the Equity Commitment Letter have been satisfied (or upon funding will be satisfied), the Parent Entities and the Merger Subs shall, and shall cause the Equity Investors to, fund at, prior to or concurrently with the Effective Time, the Equity Financing required to consummate the Transactions and to pay a portion of the Required Amount at, prior to or concurrently with the Effective Time. The Parent Entities and the Merger Subs shall use their reasonable best efforts to comply with their respective obligations, and enforce its rights their rights, under the Debt Equity Commitment Letter in a timely and diligent manner. The Parent Entities and the event of a breach thereof by the financing provider(s) thereunder. Parent Merger Subs shall not, without the Company’s prior written consentconsent of the Company Entities, (A) permit any amendment, supplementassignment, replacement supplement or other modification to be made to, or any waiver of any provision or remedy under, restate, substitute or replace, the Debt Equity Commitment Letter if such amendment, assignment, supplement, replacementmodification, modification waiver, restatement, substitution or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 replacement would reasonably be expected to (1) (x) delay adversely impact the ability of any Parent Entity or prevent Merger Sub to enforce their respective rights against any other parties to the funding Equity Commitment Letter in full any respect as so amended, assigned, replaced, restated, substituted, supplemented or otherwise modified, relative to the ability of the Debt Merger Subs to enforce their rights against any of such other parties to the Equity Commitment Letter as in effect on the date hereof, (y) add new (or expand, amend, or otherwise modify any existing) conditions to the receipt of any Equity Financing or otherwise adversely affect (including with respect to timing) the ability or likelihood of the Parent Entities or the Merger Subs to timely consummate the Mergers at the Closing or any of the Transactions or (z) make the timely funding of any Equity Financing or satisfaction of the conditions to obtaining the Equity Financing less likely to occur, (2) reduce the amount of the Equity Financing or (3) prevent, impede, impair or delay the consummation of the Mergers and the Transactions or obtaining an amount of the Equity Financing that, together with the Debt Financing) on Financing and, following the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies consummation of any such amendmentCompany Sale undertaken at the request of the Parent Entities and in accordance with Section 7.16, modification or replacement.
(b) Parent shallany Available Company Sale Net Cash Proceeds, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect would at least equal the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)Required Amount, (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt terminate any Equity Commitment Letter, (C) take or fail to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impede, impair, delay or prevent the timely consummation of all the Equity Financing contemplated by the Equity Commitment Letter or any portion (D) adversely affect the ability of the Debt FinancingParent Entities and the Merger Subs to enforce their rights against the other parties to any of the Equity Commitment Letter.
(db) The Parent Entities and the Merger Subs shall, and shall have cause each of their Affiliates to, use their reasonable best efforts to arrange the right to substitute Debt Financing and obtain the net cash proceeds received by Parent after financing contemplated thereby on the date hereof terms and conditions on or prior to the Closing from consummated offerings or other incurrences Effective Time (including, to the extent required, the full exercise of debt (including notesany flex provisions) by Parent for all or any portion of the Debt Financing by reducing commitments under set forth in the Debt Commitment Letter; provided that , including using their reasonable best efforts to (vi) such offering or other incurrence of debt does not result maintain in a breach or default underfull force and effect the Debt Commitment Letter in accordance with the terms and subject to the conditions thereof, or violation of, (ii) comply with their obligations under the Debt Commitment Letter, (iii) negotiate, execute and deliver the Definitive Financing Agreements contemplated by the Debt Commitment Letter on the terms and conditions (including the flex provisions) that are no less favorable to the Parent Entities and the Merger Subs than the terms contemplated by the Debt Commitment Letter; provided, that such other terms do not include or result in a Prohibited Modification, (iv) satisfy on a timely basis (or obtain a waiver of) all conditions to funding that are applicable to the Parent Entities and Merger Subs in the Debt Commitment Letter and the Definitive Financing Agreements, (v) enforce their rights pursuant to the Debt Commitment Letter in a timely and diligent manner and (vi) consummate the Debt Financing at or prior to the Closing on the terms and conditions contemplated by the Debt Commitment Letter, including by causing the Debt Financing Sources to fund the Debt Financing at the Closing. The Parent Entities shall provide to the Company, upon reasonable request, copies of all agreements and other documents relating to the Debt Financing and shall keep the Company reasonably informed on a reasonably current basis and in reasonable detail of material developments in respect of the Debt Financing. The Parent Entities shall give the Company prompt notice of any Financing Failure Event of which the Parent Entities or their Affiliates becomes aware and, as soon as reasonably practicable, the Parent Entities shall provide any information reasonably requested by the Company relating to any Financing Failure Event; provided, that providing such information will not violate any applicable privilege or confidentiality obligation. The Parent Entities and the Merger Subs will fully pay, or cause to be fully paid, all commitment or other fees arising pursuant to the Debt Commitment Letter as and when they become due.
(c) The Parent Entities shall not, without the prior written consent of the Company, (i) terminate or permit the termination, withdrawal, repudiation or rescission of, or release any of the obligations of any Debt Financing Source under the Debt Commitment Letter or the Definitive Financing Agreements (other than, for the avoidance of doubt, pursuant to any reduction in the amount of the Debt Financing pursuant to Section 10 of the Debt Commitment Letter), unless such Debt Commitment Letter or Definitive Financing Agreement is replaced at such time with a new commitment letter or definitive agreement that, were it structured as an amendment to such Debt Commitment Letter or Definitive Financing Agreement, would satisfy the following clause (ii), or (ii) permit any amendment, assignment, supplement or other modification to, or any waiver of any provision or remedy under, or restate, substitute or replace, the Debt Commitment Letter or the Definitive Financing Agreements if such amendment, assignment, supplement modification, waiver, restatement, substitution or replacement (w) would reasonably be expected to adversely impacts in any material respect the ability of the Parent Entities or Merger Subs to enforce their respective rights against the Debt Financing Sources party to such Debt Commitment Letter or Definitive Financing Agreement as so amended, assigned, replaced, restated, substituted, supplemented or otherwise modified, relative to the ability of the Parent Entities or Merger Subs to enforce their rights against any of such other parties to the Debt Commitment Letters as in effect on the date hereof, (x) would be reasonably expected to (1) add any new condition to the Debt Financing (or amend or modify any existing condition in any manner adverse to the Parent Entities) or otherwise be reasonably expected to delay or adversely affect the ability of the Parent Entities or the Merger Subs to consummate the Mergers at the Closing or any of the Transactions contemplated by this Agreement, or (2) reasonably be expected to delay or prevent or make less likely the timely funding of the Debt Financing or satisfaction of the conditions to obtaining the Debt Financing, (y) reduces (or would reasonably be expected to have the effect of reducing) the aggregate amount of the Debt Financing committed provided for under such Debt Commitment Letter or Definitive Financing Agreement (including by changing the amount of fees to be paid in respect of the Debt Financing or original issue discount in respect of the Debt Financing) to an amount, when taken together with the available portion of the Debt Financing and the Equity Financing together with, following the consummation of any Company Sale undertaken at the request of the Parent Entities and in accordance with Section 7.16, any Available Company Sale Net Cash Proceeds, less than the Required Amount, or (z) would reasonably be expected to prevent, impede or delay the consummation of the Mergers and the other Transactions contemplated by this Agreement (the effects described in clauses (w) through (z), collectively, the “Prohibited Modifications”); provided, that, subject to Section 7.05(e), the Parent Entities may amend the Debt Commitment Letter following to add Debt Financing Sources, lead arrangers, bookrunners, syndication agents or similar entities who have not executed the Debt Commitment Letter as of the date hereof. In the event any such reductionamendment, together modification, waiver or replacement of the Debt Financing in accordance with other cash and cash equivalents available this Section 7.13(c) is effected, any reference in this Agreement to Parentthe term (A) the “Debt Commitment Letter” will be deemed to mean the Debt Commitment Letter as so amended, is sufficient supplemented, modified, waived or replaced, (B) the “Definitive Financing Agreements” will be deemed to pay all amounts required mean the Definitive Financing Agreements as so amended, supplemented, modified, waived or replaced, (C) the “Debt Financing” will be deemed to be paid in connection with mean the transactions debt financing contemplated by this Agreementthe Debt Commitment Letter or the Definitive Financing Agreements, as applicable, each as modified pursuant to the foregoing, and (xD) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies “Debt Financing Sources” will be deemed to include the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification Persons signatory to the Debt Commitment Letter relating thereto will be promptly provided or the Definitive Financing Agreements, as applicable, each as modified pursuant to the Company. If commitments under foregoing.
(d) In the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or event that any portion of the Debt Financing from becomes unavailable for any reason, including on the same and/or terms and conditions (including the flex provisions) set forth in the Debt Commitment Letter (such unavailability of Debt Financing, a “Financing Failure Event”), the Parent Entities shall use their reasonable best efforts to, as promptly as practicable following the occurrence of such event, (i) obtain alternative financing from alternative sources so long as in an amount, when taken together with the aggregate amount available portion of the Debt Financing, together the Equity Financing and, following the consummation of any Company Sale undertaken at the request of the Parent Entities and in accordance with other cash and cash equivalents available to ParentSection 7.16, is any Available Company Sale Net Cash Proceeds, sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement Required Amount at Closing, and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (ii) obtain one or more new debt financing commitment letters with respect to such alternative debt financing, which new debt financing commitment letters will replace the existing Debt Commitment Letter in whole or in part, provided in no event shall their reasonable best efforts be deemed or construed to require them to, obtain alternative financing that includes terms and conditions, taken as a whole, that are less favorable in any material respect to the Company than) Parent Entities and the conditions precedent Merger Subs than the terms and conditions, taken as a whole, set forth in the Debt Commitment Letter, and in each case, as of the date hereof (taking into account any flex provisions applicable thereto contained in the related fee letters) or would require them to supplement pay any fees or replace agree to pay any interest rate amounts or original issue discounts, in either case, in excess of those contemplated by the Debt Financing Commitment Letter as in effect on the date hereof (“Alternative Debt Financing”taking into account any flex provisions applicable thereto). True, correct and complete copies or which would add any new condition to the consummation of each such alternative debt financing, or otherwise be reasonably expected to make the timely funding of such alternative financing commitment in respect full less likely to occur, than the conditions set forth in the Debt Commitment Letter as of such Alternative the date hereof; provided, further, for the avoidance of doubt, that in no event shall a reduction in the amount of Debt Financing (each, a “New pursuant to Section 10 of the Debt Commitment Letter”), together Letter be deemed to be a Financing Failure Event. The Parent Entities shall promptly provide the Company Entities with all related a copy of any such new debt financing commitment letter (and a redacted fee letters and associated engagement letters letter in connection therewith (solely in the case of the fee letter, with which only the fee amounts, pricing, price caps and economic “market flex” provisions and other economic terms have been redacted; provided, that such redacted terms do not adversely affect the enforceability, availability or conditionality of, of or the aggregate amount of proceeds available under, the Debt Financing contained therein redactedto be funded at the Closing), will be promptly provided to the Company). In the event that any New Debt Commitment Letter is obtainednew debt financing commitment letters are obtained in accordance with this Section 7.13(d), (i) any reference in this Agreement to (A) the “Debt Commitment Letter” will be deemed to mean the Debt Commitment Letter to the extent not superseded by one or more new debt financing commitment letters at the time in question and any new debt financing commitment letters to the extent then in effect, (B) the “Financing” or the “Debt Financing” shall include will be deemed to mean the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause the foregoing and (iiC) below, (ii) any reference in this Agreement to the “Debt Commitment LetterFinancing Sources” shall will be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter Persons signatory to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectnew debt financing commitment letters.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Endeavor Group Holdings, Inc.), Merger Agreement (Emanuel Ariel)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent 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, advisable or proper to arrange and obtain the proceeds of the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) and Fee Letter, including using its reasonable best efforts to seek (i) maintain in effect the Commitment Letter and Fee Letter in accordance with their terms, (ii) negotiate definitive agreements with respect to enforce its rights under 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) and (iii) satisfy (or, if deemed advisable by Parent, obtain the waiver of) on a timely basis all conditions in the Commitment Letter, Fee Letter and the Definitive Agreements and comply with its obligations thereunder. In the event that all conditions contained in the Commitment Letter in and Fee Letter have been satisfied and Parent is required to consummate the event Closing pursuant to Section 2.4, Parent shall use reasonable best efforts to cause each Lender to fund its respective committed portion of a breach thereof the Debt Financing required to consummate the transactions contemplated by this Agreement and to pay related fees and expenses on the financing provider(s) thereunderClosing Date. Parent shall not, without the Company’s prior written consentconsent of the Company (which shall not be unreasonably withheld, conditioned or delayed), permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision (including any remedy) under, or voluntarily replace (it being understood that any Alternative Debt Financing shall not be deemed a voluntary replacement for purposes of the Debt sentence), the Commitment Letter or Fee Letter if such amendment, supplementmodification, replacement, modification or waiver or voluntary replacement (Aw) reduces the aggregate amount of the cash proceeds from the Debt Financing adds new (or (Badversely modifies any existing) imposes new or additional conditions to the initial funding or otherwise expands 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 in full consummation of the Debt Financing (or satisfaction of as compared to those in the conditions to the Debt Financing) Commitment Letter and Fee Letter as in effect on the Closing Datedate of this Agreement, or (yx) adversely affect affects the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter, Fee Letter or the definitive agreements with respect thereto Definitive Agreements as so amended, replaced, supplemented or otherwise modified, relative to the ability of Parent to enforce its rights against such other parties to the Commitment Letter and Fee Letter as in effect on the date hereof or in the Definitive Agreements, (y) reduces the aggregate amount of the Debt Financing, or (z) would otherwise reasonably be expected to prevent, impede or materially delay the consummation of the Merger and the other transactions contemplated by this Agreement; provided, that Parent may amend for the Debt avoidance of doubt no consent from the Company shall be required for: (A) any amendment, replacement, supplement or modification of the Commitment Letter that is limited to add or replace adding lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as of the date of this Agreement (including in replacement of a Lender), (B) implementation or exercise of any “flex” provisions provided in the Fee Letter as in effect as of the date hereof or (C) any amendment, replacement, supplement or modification to the Commitment Letter or Definitive Agreements so long as such action would not reasonably be expected to delay or prevent prohibited by the Closingforegoing clauses (w)-(z). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) In the event that any portion of the Debt Financing becomes unavailable, regardless of the reason therefor (other than a breach by the Company of this Agreement which prevents or renders impracticable the consummation of the Debt Financing) Parent shall, and shall cause its Affiliates and Representatives to, will (1) use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter obtain alternative debt financing (the “Alternative Debt Financing”) (in an amount sufficient, when taken together with available cash on hand, and any then-available Debt Financing Agreements”pursuant to any then-existing Commitment Letter, to consummate the transactions contemplated by this Agreement and to pay related fees and expenses earned, due and payable as of the Closing Date) on the terms and conditions that are not materially less favorable in the aggregate to Parent than those contained in the Debt Commitment Letter, Letter and the Fee Letter that the alternative financing would replace (Ctaking into account any flex provisions) from the same or other sources and which do not include any incremental conditionality to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability consummation of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein such alternative debt financing that are within its control more onerous to Parent or subject to its influence and, upon satisfaction of the Company (in the aggregate) than the conditions set forth in the Debt Commitment Letter, to consummate Letter in effect as of the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, date of this Agreement and (E2) to consummate promptly notify the Debt Financing at or prior to Company of such unavailability and the Effective Timereason therefor. In furtherance of and not in limitation of the foregoing, in the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing structured as high yield financing is unavailable, regardless of the reason therefor, (B) all closing conditions contained in Article VII and Annex I shall be satisfied or waived (other than those conditions that by their nature are to be satisfied or waived at the Closing, provided that such conditions are capable of being satisfied as of such day assuming the Closing was to occur on such day) and (C) the bridge facilities contemplated by the Debt Commitment Letter (or alternative bridge facilities obtained in accordance with this Section 6.9) are available on the terms set forth therein. and conditions described in the Commitment Letter (or replacements thereof), then Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) cause the proceeds of such debt offerings or other incurrences have been received by Parent bridge financing to be used in cash, (y) Parent promptly notifies the Company lieu of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations affected portion of the Company and its Subsidiaries high yield financing to consummate the Closing when Parent is required to do so pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion 2.4.
(c) For purposes of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash foregoing Sections 6.9(a) and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”b). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the term “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt any commitment letter (or similar agreement) with respect to any alternative debt financing arranged in compliance herewith (and any Commitment Letter which is not superseded by a New Debt Commitment Letter Letters remaining in effect at the time in question and each New Debt Commitment Letter to question), (ii) the extent then in effect, and (iii) any reference in this Agreement to term “fee letterFee Letter” shall be deemed to include any fee letter relating (or similar agreement) with respect to any alternative debt financing arranged in compliance with this Section 6.9, and (iii) the term “Lenders” shall be deemed to include any lenders providing the alternative debt financing arranged in compliance herewith. Parent shall keep the Company reasonably informed on a reasonably current basis of the status of its efforts to consummate the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Financing. Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with prompt oral and written notice of any breach or default by any party to any Commitment Letters or the Company Credit AgreementDefinitive Agreements of which Parent gains knowledge and the receipt of any written notice or other written communication from any Lender, subject guarantor, or other financing source with respect to compliance any breach or default or, termination or repudiation by any party to any Commitment Letters or the Definitive Agreements or any provision thereof. For the avoidance of doubt, Parent shall, directly or indirectly, make all proceeds of the Debt Financing received by Parent available to Acquisition Sub as are required for Acquisition Sub to perform its obligations hereunder (including with Section 6.14(a)(iiirespect to the consummation of the Offer and the payment for shares tendered thereby).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Harland Clarke Holdings Corp), Merger Agreement (Valassis Communications Inc)
Financing. (a) Subject Each of Parent and Merger Sub will use, and will cause their Affiliates and their respective Representatives to the terms and conditions of this Agreementuse, Parent shall use its reasonable best efforts to take, take (or cause to be taken, ) all actions necessary, and proper in order to doobtain third party debt financing for the purpose of financing the aggregate Merger Consideration, the Company Equity Award Consideration, any repayment or cause refinancing of debt contemplated by this Agreement or required in connection with the transactions contemplated hereby (including, for the avoidance of doubt, any offers required under this Agreement to repurchase outstanding debt upon a change of control or fundamental change and conversions of the Company Convertible Notes) and any other amounts required to be done, paid in connection with the consummation of the transactions contemplated hereby and all things necessary, advisable or proper related fees and expenses of Parent and Merger Sub (the “Financing”) (it being understood that the receipt of such Financing is not a condition to arrange and obtain the Debt Financing Merger) on the terms and conditions described in the Debt Commitment Letter pursuant (taking into account the anticipated timing of the Marketing Period), including using its reasonable best efforts (i) to negotiate definitive agreements with respect thereto on the terms thereof and conditions contained in the Commitment Letter (including any “market flex” provisionsprovisions applicable thereto), and on such other terms as Parent and the Lenders shall agree, (ii) including using its reasonable best efforts to seek satisfy all conditions on a timely basis to enforce its rights under obtaining and consummating the Debt Financing applicable to (and within the control of) it set forth in such definitive agreements, and (iii) maintain in effect and comply with the Commitment Letter (including any “flex” provisions set forth in the event of a breach thereof by the financing provider(s) Commitment Letter, including as specified in any fee letter), including executing and delivering all such documents and instruments as may be reasonably required thereunder. Parent shall notgive the Company prompt notice upon becoming aware of, without the Company’s prior or receiving written consent, permit any amendment, supplement, replacement or modification to be made notice with respect to, or any waiver (x) material breach of any provision under, of the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 by a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, party thereto or (y) adversely affect unavailability, termination or ineffectiveness of any provision of the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain result in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially an amount being available less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties what is required to consummate the Merger, all conditions to receipt of the full amount of the Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financingtransaction herein. Parent shall keep the Company informed on a current reasonable basis and in reasonable detail of the status of its efforts to arrange the Debt FinancingFinancing and shall not permit any amendment or modification to be made to, andor any waiver of any provision or remedy under, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reasonif such amendment, (ii) Parent becomes aware of any breach modification or default waiver (A) reduces the aggregate amount of Financing below the amount that would be required to consummate the Merger and the other transactions contemplated by any Financing Source party to this Agreement (including by changing the Debt amount of fees or original issue discount contemplated by the Commitment Letter or any Debt Financing Agreement or Letter), (B) any other party amends or expands the conditions to the Debt Commitment Letter or any Debt Financing Agreement ifavailability of the Financing, in the case of this clause (B), such breach or default C) would reasonably be expected to affect prevent or delay the availability Closing or (D) would reasonably be expected to adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Commitment Letter, except, in each such case, with the prior written consent of the Debt Financing or (iii) a counterparty indicates in writing or orally Company; provided, for the avoidance of doubt, that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates tobe permitted, without the prior written consent of the Company, to amend the Commitment Letter to add lenders, lead arrangers, bookrunners and syndication agents or similar entities, if the addition of such additional parties, individually or in the aggregate, would not delay the availability of the Financing. In the event that any portion of the Financing becomes unavailable on the terms and conditions (including any “flex” provisions) or from the sources contemplated in the Commitment Letter, Parent shall promptly notify the Company thereof, and Parent and Merger Sub shall use their respective reasonable best efforts to arrange and obtain as promptly as practicable following the occurrence of such event alternative debt financing (in an amount sufficient, together with the remaining Financing and any other sources available to Parent and Merger Sub, to fund the Financing) from the same or other sources (such portion from alternate sources, the “Alternate Financing”), so long as such Alternate Financing does not otherwise include terms (including any “flex” provisions) that could reasonably be expected to make the funding of such Alternate Financing in an amount less than what is required to consummate the transaction herein. Notwithstanding anything in this Agreement to the contrary, each of Parent and Merger Sub acknowledges and agrees that neither the availability nor terms of the Financing (including obtaining any required consents or waivers from any third party with respect thereto) or any Alternate Financing are conditions to the obligations of Parent and Merger Sub to consummate the Merger, and each of Parent and Merger Sub reaffirms its obligation to consummate the Merger and the other transactions contemplated by this Agreement subject only to the express conditions set forth in Article VII, irrespective and independently of the availability or terms of the Financing or any Alternate Financing, Parent’s or Merger Sub’s use of efforts in accordance with this Section 6.06(a) or otherwise.
(b) Prior to the Effective Time, the Company shall use reasonable best efforts to, and shall cause its Subsidiaries to use their reasonable best efforts to, and shall use its reasonable best efforts to cause its Representatives to, provide all cooperation that is necessary, customary or advisable and reasonably requested by Parent to assist Parent in the arrangement, obtainment and syndication of the Financing; provided, however, that nothing herein shall require such cooperation to the extent it would (A) unreasonably disrupt the conduct of the business or operations of the Company or its Subsidiaries (in the reasonable judgment of the Company), (B) require the Company or any of its Subsidiaries to agree to pay any fees, reimburse any expenses or otherwise incur any liability or give any indemnities prior to the Effective Time for which it is not promptly reimbursed or simultaneously indemnified or (C) require the Company or any of its Subsidiaries to take any action or enter into any transaction that would reasonably be expected to materially impairconflict with, delay or prevent consummation result in any violation or breach of, or default (with or without notice or lapse of all time, or both) under, the Company Charter, the Company By-laws, any Applicable Laws, the Credit Agreement or any portion Material Contract. Such cooperation shall include, without limitation, (i) participating in a reasonable number of meetings, presentations and due diligence sessions and sessions with potential lenders, investors and meetings with ratings agency, (ii) providing reasonable and timely assistance with the Debt preparation of customary materials for presentations, offering memoranda, prospectuses and similar documents required in connection with the arranging, obtaining and syndication of Financing (including requesting the Consent of any accountant’s use of their materials in connection with the Financing.
), (diii) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof as promptly as reasonably practicable, and in any event at least 18 Business Days prior to the Closing from consummated offerings or Date, furnishing Parent and its financing sources with all available financial and other incurrences information pertinent to the Company and its Subsidiaries including delivery of debt (including notesx) by Parent unaudited consolidated balance sheets and related statements of operations and comprehensive income and cash flows for all or any portion the Company for the fiscal quarter ended June 30, 2013 and each subsequent fiscal quarter ended on a date that is not a fiscal year end and that is at least 45 days before the Closing Date, (y) (in the event that the Closing Date occurs on a date that is more than 90 days following December 31, 2013) audited consolidated balance sheets and related consolidated statements of operations and comprehensive income, stockholders’ equity and cash flows for the fiscal year ended December 31, 2013, in each case prepared in accordance with GAAP and (z) without duplication of the Debt Financing foregoing clauses (x) and (y), the information and documents relating to the Company required by reducing commitments under paragraphs 9 and 10 of Exhibit E to the Debt Commitment Letter; provided that Letter (such information in the foregoing clauses (x), (y) and (z), the “Required Information”), (iv) providing unaudited consolidated balance sheets and related statements of operations and comprehensive income and cash flows for the Company, (v) such having the Company designate members of senior management of the Company to execute customary authorization letters with respect to bank information memoranda, offering memoranda or other incurrence of debt does not result materials provided to prospective lenders or investors and participate in a breach or default underreasonable number of presentations, or violation ofroad shows, the Debt Commitment Letterdue diligence sessions, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together drafting sessions and sessions with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid ratings agencies in connection with the transactions contemplated by this AgreementFinancing, (x) the proceeds of including reasonable direct contact between such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations senior management of the Company and its Subsidiaries pursuant and the potential lenders in the Financing, (vi) assisting Parent in obtaining any corporate credit and family ratings from any ratings agencies contemplated by the Commitment Letter, (vii) requesting the Company’s independent auditors to Section 6.14 shall no longer cooperate with Parent’s reasonable best efforts to obtain customary accountant’s comfort letters (including “negative assurance”) and consents from the Company’s independent auditors, (viii) assisting in the preparation of, and executing and delivering, definitive financing documents, including guarantee and collateral documents and customary closing certificates as may be required by the Financing and other customary documents as may be reasonably requested by Parent, (ix) facilitating the pledging of collateral for the Financing, (x) assisting the Financing sources in effect. Further, Parent shall have benefiting from the right to substitute commitments in respect of other financings for all or any portion existing lending relationships of the Debt Financing Company and its Subsidiaries, (xi) requesting from the same and/or alternative financing sources so long Company’s existing lenders such customary documents in connection with refinancings as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid requested by Parent in connection with the transactions Financing and collateral arrangements, including customary payoff letters (in form and substance reasonably satisfactory to Parent), lien releases (including UCC-3 termination statements), instruments of termination or discharge, (xii) furnishing Parent and the Lenders with all documentation and other information required by Governmental Entities with respect to the Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended), and (xiii) otherwise cooperating with Parent, and taking all other corporate actions, the effectiveness of which shall be subject to the occurrence of the Effective Time, reasonably requested by Parent reasonably necessary to permit the consummation of the Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable costs and expenses (including reasonable attorneys’ fees, but excluding for the avoidance of doubt, the costs of the Company’s preparation of its annual and quarterly financial statements) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with the Financing, including the cooperation of the Company and its Subsidiaries and Representatives contemplated by this Agreement Section 6.06, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all conditions precedent losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of the Financing, the use of proceeds thereof and any information used in connection therewith, except with respect to funding of any fraud or intentional misrepresentation or willful misconduct by any such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent persons. The expense reimbursement and indemnification obligations set forth in this Section 6.06(b) shall survive the Debt Commitment Letter, to supplement or replace the Debt Financing Closing and any termination of this Agreement.
(“Alternative Debt Financing”). True, correct and complete copies c) For purposes of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available underthis Section 6.06, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the term “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall also be deemed to include any fee Alternate Financing (and any debt securities issued in lieu of any committed bridge facilities) and the term “Commitment Letter” shall also be deemed to include any commitment letter relating (or similar agreement) with respect to such Alternate Financing. All non-public or otherwise confidential information regarding either party obtained by the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter other party pursuant to the extent then in effect.
(e) On the Closing Date, Parent this Section 6.06 shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full be kept confidential in accordance with the Company Credit Confidentiality Agreement; provided, however, that Parent and its Representatives shall be permitted to disclose information as necessary and consistent with customary practices in connection with the Financing subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything confidentiality arrangements satisfactory to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this AgreementCompany.
Appears in 2 contracts
Sources: Merger Agreement (Community Health Systems Inc), Merger Agreement (Health Management Associates, Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent 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 consummate, on a timely basis, on or proper prior to arrange and obtain the Debt Closing Date, the Financing contemplated by the Commitment Letters on the terms and conditions described in set forth therein (subject to any “flex” provisions applicable to the Debt Commitment Letter pursuant to the terms thereof (including any Financing; provided that such “market flex” provisions) including using provisions would not adversely affect the amount or availability of the Debt Financing). Parent shall use its reasonable best efforts to seek (i) maintain in effect the Commitment Letters and comply with its obligations and conditions thereunder, (ii) negotiate and enter into definitive agreements on a timely basis with respect to enforce the Financing on terms and conditions (subject to any “flex” provisions applicable to the Debt Financing; provided that such “flex” provisions would not adversely affect the amount or availability of the Debt Financing) contained in the Commitment Letters or otherwise no less favorable to Parent with respect to timing, amount or conditions than those contained in the Commitment Letters (the “Financing Agreements”), and (iii) satisfy (or have waived) on a timely basis all conditions and covenants applicable to Parent in the Commitment Letters that are within its rights 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 in Letters (including the event of a breach thereof by the financing provider(s) thereunderFinancing Agreements). Parent shall notkeep the Company reasonably informed of material developments in respect of Parent’s efforts to arrange the Financing, including any changes to the respective amounts of the Debt Financing and Equity Financing. Prior to the Closing, without the Company’s prior written consentconsent of the Company, permit Parent shall not agree to, or permit, any amendment, supplement, replacement modification or modification to be made tosupplement of, or any waiver of any provision under, the Debt Commitment Letter if Letters to the extent such amendment, supplementmodification, replacement, modification supplement or waiver would (Ai) reduces reduce the aggregate amount to be funded under the Financing (including by changing the amount of the cash proceeds from fees to be paid or original issue discount of the Debt Financing or similar fees) unless (Bx) imposes new or additional conditions to in the initial funding or otherwise expands any case of the conditions to the receipt of a reduction in the Debt Financing, the Equity Financing is increased by a corresponding amount or otherwise expands(y) in the case of a reduction in the Equity Financing, amends or modifies any other provision of the Debt Commitment Letter Financing is increased by a corresponding amount, (ii) amend, modify or supplement the conditions or contingencies to the Financing in a manner that would reasonably be expected to make it less likely the Financing will be funded or imposes new or additional conditions or expands any existing condition to the receipt of the Financing at the Closing or (iii) be reasonably expected to prevent or materially delay the consummation of the transactions contemplated by this Agreement. Parent shall promptly deliver to the Company true and completed copies of any such amendment, supplement, modification or waiver (which, in the case of fee letters, may be redacted to omit numerical amounts and certain economic “flex” terms, none of which would adversely affect the amount or availability of the Debt Financing). Notwithstanding the foregoing, (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter Letters to add or replace investors, lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letters as of the date hereof and, in connection therewith, amend the economic and other arrangements with respect to the existing and additional investors, lenders, lead arrangers, bookrunners, syndication agents or similar entities, if the addition of such additional parties and amendment of additional terms do not adversely impact the aggregate amount of the Financing to be funded at the Closing and (y) in the event that Parent is required pursuant to this Section 7.11 to provide any information that is subject to attorney-client or similar privilege, Parent may withhold disclosure of such information so long as Parent gives notice to the Company of the fact that it is withholding such action information and thereafter the Company and Parent shall use their respective reasonable best efforts to cause such information to be provided in a manner that would not reasonably be expected to delay waive the applicable privilege or prevent protection.
(b) In the Closing)event any portion of the Equity Financing or the Debt Financing becomes unavailable on the terms and conditions (including any “flex” provisions applicable to the Debt Financing) contemplated in the Investment Agreements or the Debt Commitment Letters, as applicable, and such portion is necessary to fund the transactions contemplated by this Agreement, Parent shall promptly notify the Company and shall, (i) with respect to the Equity Financing, 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 to obtain as promptly as practicable alternative equity financing from alternative sources for such portion (x) on terms and conditions not materially less favorable to the Company than the Investment Agreements and (y) in an amount equal to the amount of the Equity Financing and (ii) with respect to the Debt Financing, 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 to obtain as promptly as practicable alternative debt financing from alternative sources for such portion (x) on terms and conditions not materially less favorable to Parent than the Debt Commitment Letters and (y) in an amount equal to the amount of the Debt Financing, such that the amount of alternative financing obtained under (i) and (ii) equals an amount sufficient to consummate the Merger. To the extent that Parent is unable to obtain any amount of alternative equity financing to replace the Equity Financing, Parent shall draw upon any additional amounts available under the Debt Financing to cover the shortfall. If obtained, Parent shall promptly deliver to the Company true, true and complete and correct copies of a new equity commitment or a new debt financing commitment, as applicable, pursuant to which any such amendment, modification or replacement.
(b) alternative source shall have committed to provide Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability any portion of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Equity 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide as applicable. References in this Agreement to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to “Equity Financing” shall include the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing equity financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall notInvestment Agreements as amended, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action modified or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof replaced and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference references in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter Letters as amended, modified pursuant to clause (ii) belowor replaced, (ii) any reference in this Agreement to the Investment Agreements and the “Debt Commitment LetterLetters” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectsuch documents as amended, modified or replaced and (iii) “Equity Financing Sources” and “Debt Financing Sources” shall include the providers of equity or debt financing, as applicable, under such documents as amended, modified or replaced (in the case of each of clauses (i), (ii) and (iii), including replacement with alternative financing and alternative equity or debt financing commitments (as applicable) pursuant to this Section 7.11 from and after such amendment, modification or replacement); provided, that fee letters or side letters which do not contain “flex” or other provisions which affect the terms or conditions of the Debt Financing shall not be required to be provided.
(c) Parent acknowledges and agrees that the obtaining of the Financing or any reference in alternate Financing pursuant to Section 7.11(b) is not a condition to the Closing and reaffirms its obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Financing or any alternative Financing.
(d) The Company shall use its reasonable best efforts to provide, and to cause its Subsidiaries and its and their Representatives to provide, to Parent such reasonable cooperation that is customary in connection with the arrangement of the Debt Financing, as may be reasonably requested by Parent, including by using its reasonable best efforts to (i) upon reasonable advance notice, cause members of senior management and the Representatives of the Company and its Subsidiaries to be available to participate in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with ratings agencies, in each case in connection with the Debt Financing, (ii) furnish as promptly as reasonably practicable to the Parent and the Debt Financing Sources the Required Information as to the Company and its Subsidiaries and assist the Parent with the preparation of customary materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Debt Financing (the “fee letterOffering Documents”), in each case to the extent, and solely to the extent, such materials relate to information concerning the Company and its Subsidiaries, (iii) assist Parent in preparing pro forma financial statements if Parent determines such pro forma financial statements are legally required or customary in connection with the Debt Financing (or if reasonably requested by the Debt Financing Sources), 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, (iv) upon Parent’s request, issuing customary representation letters to the Company’s independent registered public accounting firm and using reasonable best efforts to obtain, consistent with customary practice consent to SEC filings and 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 reports and customary comfort letters (including “negative assurance” shall be deemed comfort) from the Company’s registered public accounting firm with respect to include financial information and consents to the use of such accountants’ audit reports relating to the Company and its Subsidiaries, (v) provide customary authorization letters to the Debt Financing Sources (including with respect to the absence of material non-public information concerning the Company and its Subsidiaries in the public side version of documents delivered to prospective lenders) and, to the extent necessary, consents of accountants for use of their reports in any fee letter materials relating to the Debt Commitment Letter Financing, (vi) provide all documentation and other information as is required by applicable “know your customer” and anti-money laundering rules and regulations including without limitation the USA PATRIOT Act to the extent reasonably requested at least five (5) Business Days prior to the anticipated Closing Date, (vii) subject to Section 7.11(j), assist in the preparation of and executing and delivering one or more credit agreements, indentures, purchase agreements, pledge and security documents, mortgages, guarantees and other definitive financing documents or other certificates or documents as may reasonably be requested by Parent, (viii) subject to Section 7.11(j), take all reasonable actions requested by Parent necessary to permit the Debt Financing Sources to evaluate the Company’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 the Debt Financing Sources, (ix) subject to Section 7.11(j), take all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent or its Debt Financing Sources that are necessary or customary to permit the consummation of the Debt Financing, (x) subject to Section 7.11(j), obtain customary evidence of authority, customary officer’s certificates, good standing certificates (to the extent applicable) in the respective jurisdictions of organization of the Company and its Subsidiaries, customary lien searches with respect to the Company and its Subsidiaries and insurance certificates, as is customary and to the extent reasonably requested by Parent or its Debt Financing Sources in connection with the closing of the Debt Financing, (xi) allow the Debt Financing Sources to have access to the existing lending relationships of the Company and its Subsidiaries and (xii) effecting the payoff of the Company Credit Agreement concurrently with the Closing. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided, however, that such logos are used solely in a manner that is not superseded by intended to or reasonably likely to harm or disparage the Company or any New Debt Commitment Letter at of its Subsidiaries or the time in question and each New Debt Commitment Letter to reputation or goodwill of the extent then in effectCompany or any of its Subsidiaries.
(e) On The Company and its Subsidiaries shall use their reasonable best efforts to periodically update any Required Information provided to Parent as may be necessary so that such Required Information (i) is Compliant and (ii) meets the Closing Dateapplicable requirements set forth in the definition of “Required Information”. In addition, if, in connection with a marketing effort contemplated by the Debt Commitment Letters, Parent reasonably requests the Company to file a Current Report on Form 8-K pursuant to the Exchange Act that contains material non-public information which Parent in consultation with the Company and the Debt Financing Sources reasonably determines to include in a customary offering memorandum for the Debt Financing, then the Company shall provide promptly file such Current Report on Form 8-K.
(f) At the reasonable request of Parent, upon reasonable advance notice, the Company shall, and shall cause its Subsidiaries to, promptly take such actions in respect of the Company Notes, including as set forth in Section 7.12, and to take, or cause to be taken, all funds required actions and to do, or cause to be done, all things necessary, proper or advisable to effect the repayment release (and provide evidence of such release) of all indebtedness under Liens and guarantees provided in respect of the Company Credit Agreement in full in accordance Notes upon consummation of the Company Notes Redemption.
(g) The Company shall (i) negotiate a customary payoff letter with BMO ▇▇▇▇▇▇ Bank, N.A. with respect to the Company Credit Agreement, subject in form and substance reasonably satisfactory to compliance with Section 6.14(a)(iii)Parent, and (ii) deliver or cause to be delivered such payoff letter to Parent on or prior to the Closing.
(fh) All non-public or otherwise confidential information regarding the Company obtained by the Acquirer Parties or their Representatives pursuant to Section 7.11(c) shall be kept confidential in accordance with the Confidentiality Agreement; provided, that notwithstanding the terms of the Confidentiality Agreement, upon reasonable advance notice to the Company, Parent may provide such information to potential sources of capital and to rating agencies and prospective lenders during syndication of the Debt Financing subject to customary confidentiality arrangements with such Persons regarding such information.
(i) Notwithstanding anything to the contrary contained hereinin this Agreement, Parent’s obligations hereunder are not subject nothing contained in this Section 7.11 and Section 7.12 shall require, and in no event shall the reasonable best efforts of Parent or its Subsidiaries be deemed or construed to a condition regarding Parent’s require, Parent or any of its Affiliates’ obtaining funds Subsidiaries to (i) pay any fees in excess of those contemplated in the Debt Commitment Letters (whether to secure waiver of any conditions contained therein or otherwise), (ii) amend or waive any of the terms or conditions hereof or (iii) consummate the Merger and Closing at any time prior to the transactions contemplated by date determined in accordance with Section 2.2; provided that obtaining the Financing is not a condition to the Closing.
(j) Notwithstanding anything to the contrary contained in this Agreement., (i) nothing in this Agreement shall require any cooperation by the Company, its Subsidiaries or any of their respective Representatives to the extent that (A) it would require the Company to pay any commitment or other fees, reimburse any expenses or othe
Appears in 2 contracts
Sources: Merger Agreement (KCG Holdings, Inc.), Merger Agreement (Virtu Financial, Inc.)
Financing. (a) (i) Subject to the terms and conditions of this Agreement, Parent Purchaser 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, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions (including the flex provisions) described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts and satisfy the conditions to seek to enforce its rights under the Debt Financing as described in the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not(including, without limitation, the Company’s prior written consent, repayment of any indebtedness to the extent such repayment is a condition to the Debt Financing) and shall not permit any amendmenttermination, supplement, replacement amendment or modification to be made to, or any waiver of any provision under, or any replacement of, the Debt Commitment Letter if such termination, amendment, supplementmodification, replacement, modification waiver or waiver replacement (A) reduces (or could have the effect of reducing) the aggregate amount of the cash proceeds from Debt Financing (including by increasing the amount of fees to be paid or original issue discount unless (x) the Debt Financing is increased by a corresponding amount or the Debt Financing is otherwise made available to fund such fees or original issue discount and (y) after giving effect to any of the transactions referred to in clause (x) above, the representation and warranty set forth in Section 6.6 shall be true and correct) or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 Letter, in a manner that would reasonably be expected to (x) 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, Date or (y) adversely affect impact the ability of Parent Purchaser to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, thereto; provided that Parent Purchaser 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 who had not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant of the date hereof provided that such addition does not have the effect set forth in subclauses (A) or (B) of this sentence. Purchaser shall promptly deliver to clause (ii) belowSeller copies of any such termination, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectamendment, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectmodification, waiver or replacement.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Zayo Group LLC), Stock Purchase Agreement (Zayo Group Holdings, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall will 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 or proper to arrange arrange, timely obtain, maintain and obtain enforce its rights in respect of the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall notLetters, without the Company’s prior written consent, and will not permit any amendment, supplement, replacement amendment and the requirements set forth above or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter Letters if such amendment, supplement, replacement, modification or waiver would (Ai) reduces reduce the aggregate amount of the cash proceeds from the Debt Financing Financing, or (Bii) imposes impose new or additional conditions to the initial funding conditions, or otherwise expands amend, modify or expand any of the conditions conditions, to the receipt of the Debt Financing, in the case of either clause (i) or otherwise expands(ii) above, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (xA) delay (other than a de-minimus delay), impede (other than a de-minimus impediment) or prevent the Closing Date, (B) make the funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur or (C) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Debt FinancingCommitment Letters or the definitive agreements with respect thereto, the ability of Parent or Merger Sub to consummate the Transactions or the likelihood of consummation of the Transactions; provided, however, that Parent and Merger Sub may (i) amend the Debt Commitment Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letters as of the date of this Agreement or (ii) otherwise amend or replace the Debt Commitment Letters so long as (v) such amendment or replacement do not impose terms or conditions that would reasonably be expected to delay, impede or prevent the Closing, (w) the terms are not, taken as a whole, less beneficial to Parent or Merger Sub, than those in the Debt Commitment Letters as in effect on the Closing Date, date of this Agreement or impose incremental conditions (yor expand existing conditions) to funding thereunder as compared to the Debt Commitment Letters in effect as of the date hereof (x) adversely affect affects the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive Financing agreements with respect thereto (providedas so amended, that replaced, supplemented or otherwise modified, relative to the ability of Parent may amend to enforce its rights against such other parties to the Debt Commitment Letters and Fee Letter as in effect on the date hereof or in the definitive debt agreements, (y) reduce the aggregate amount of the Debt Financing and (z) with respect to add replacements, the replacement debt commitments otherwise satisfy the terms and conditions of an Alternative Financing set forth below. In the event of such amendment or replace lendersreplacement of the Debt Commitment Letters as permitted by the proviso to the immediately preceding sentence, lead arrangers, bookrunners, syndication agents the financing under such amended or similar entities so long replaced Debt Commitment Letters will be deemed to be “Financing” as such action would not reasonably be expected to delay or prevent the Closing)term is used in this Agreement. Parent shall promptly deliver to will keep the Company true, complete and correct copies reasonably informed of any such amendment, modification modification, supplement or replacement.
(b) , including promptly providing copies of all such drafts and related final documentation. Parent shall, and shall cause its Affiliates and Representatives to, will use its reasonable best efforts to (AI) to maintain in effect the Debt Commitment Letter Letters (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided including any definitive agreements entered into in this Section 6.13connection therewith), (BII) satisfy on a timely basis (taking into account the Marketing Period) all conditions in the Financing Agreements applicable to Parent and Merger Sub to obtaining the Financing as promptly as practicable, (III) negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) Letters on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (Letters or obtain the waiver of), and consistent 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 Debt 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 material respects with the Debt Commitment LetterLetters as promptly as practicable (such definitive agreements, together with the Debt Commitment Letters, the “Financing Agreements”) and promptly upon execution thereof provide complete executed copies of such definitive agreements to the Company, (IV) consummate the Debt Financing at or prior to the ClosingClosing and (V) fully enforce the counterparties’ obligations and its rights under the Financing Agreements, including by suit or other appropriate proceeding to cause the lenders under the Financing to fund in accordance with their respective commitments if all conditions to funding the Financing in the applicable Financing Agreements have been satisfied or waived. Parent will keep the Company reasonably informed on a timely basis of the status of Parent’s and Merger Sub’s efforts to arrange the Financing and to satisfy the conditions thereof, including, upon Company’s reasonable request, (DA) advising and updating the Company, in a reasonable level of detail, with respect to status, proposed Closing Date and terms of the Financing Agreements for the Financing and (B) providing copies of the current drafts of all such Financing Agreements. If any portion of that amount of the Financing becomes reasonably likely to be unavailable on the terms and conditions contemplated by the applicable Financing Agreements, (i) Parent will promptly notify the Company and (ii) Parent will use its reasonable best efforts to arrange and obtain alternative financing from alternative sources in an amount sufficient to consummate the Transactions with terms and conditions not less favorable, taken as a whole, to Parent, Merger Sub and the Company than the terms and conditions set forth in the applicable Financing Agreements (“Alternative Financing”) as promptly as practicable following the occurrence of such event but no later than the final day of the Marketing Period. In such event, (1) the term “Financing” will be deemed to include the Alternative Financing, (2) the term “Debt Commitment Letters” will be deemed to include any commitment letters, engagement letters and fee letters with respect to any such alternative debt financing and (3) the term “Financing Agreements” will be deemed to include any definitive agreement with respect to the Alternative Financing. Notwithstanding anything contained in this Section 5.13 or in any other provision of this Agreement, in no event will Parent or Merger Sub be required (i) to comply with its obligations under amend or waive any of the Debt Commitment Letter, and terms or conditions hereof or (Eii) to consummate the Closing any earlier than the final day of the Marketing Period. For the avoidance of doubt, Parent will, directly or indirectly, make all proceeds of the Debt Financing received by Parent available to Merger Sub as are required for Merger Sub to perform its obligations hereunder.
(b) The Company will provide to Parent, and will cause its Subsidiaries to provide, at Parent’s cost and expense as provided in Section 5.13(c), and will use reasonable best efforts to cause its Representatives to provide, all cooperation reasonably requested by Parent that is customary and necessary in connection with arranging, obtaining and syndicating the Financing and causing the conditions in the Financing Agreements to be satisfied, including using reasonable best efforts in (i) assisting with the preparation of offering and syndication documents and materials, including prospectuses, private placement memoranda, information memoranda, lender and investor presentations, rating agency materials and presentations, and similar documents and materials, in connection with the Financing (all such documents and materials, collectively, the “Offering Documents”), (ii) preparing and furnishing to Parent and the Financing Sources promptly with all Required Information to the extent it is available to the Company and all other information and disclosures relating to the Company and its Subsidiaries (including their businesses, operations, financial projections and prospects) as may be reasonably requested by Parent to assist in preparation of the Offering Documents, (iii) having the Company designate a member of senior management of the Company to participate in a reasonable number of presentations, road shows, due diligence sessions, drafting sessions and sessions with ratings agencies in connection with the Financing, including direct contact between such senior management of the Company and its Subsidiaries and Parent’s Financing Sources and potential lenders in the Financing, (iv) assisting Parent in obtaining any corporate credit and family ratings from any ratings agencies contemplated by the Debt Commitment Letters, (v) requesting the Company’s independent auditors to cooperate with Parent’s reasonable best efforts to obtain accountant’s comfort letters and consents from the Company’s independent auditors, if applicable, (vi) assisting in the preparation of, and executing and delivering, definitive financing documents, including guarantee documents, hedging agreements and other certificates and documents as may be reasonably requested by Parent, (vii) obtaining from the Company’s existing lenders such consents, approvals, authorizations and instruments which may be reasonably requested by Parent in connection with the Financing, (viii) obtaining from the Company’s existing banking lenders customary payoff letters, lien releases, instruments of termination or discharge and (ix) cooperating with Parent to satisfy the conditions precedent to the Financing to the extent within the control of the Company and its Subsidiaries, and taking all corporate actions, subject to the occurrence of the Effective Time, reasonably requested by Parent to permit the consummation of the Financing and to permit the proceeds thereof to be made available to the Surviving Corporation immediately upon the Effective Time; provided, however, that no obligation of the Company or any Company Subsidiary under any certificate, document, agreement or instrument (other than the representation letters referred to above) will be effective until the Effective Time and, none of the Company or any Company Subsidiary will be required to pay any commitment or other similar fee or incur any other liability (other than in connection with the authorization and representation letters referred to above) in connection with the Financing prior to the Effective Time. In connection with the event that foregoing, the Company will file with the SEC all conditions precedent expressly set forth Company Reports for the annual and quarterly fiscal periods ending on and after September 30, 2014 not later than (i) 90 days following the end of the Company’s fiscal year, in the Debt Commitment Letter have been orcase of annual reports on Form 10-K and (ii) 45 days following the end of each fiscal quarter of the Company, in the case of quarterly reports on Form 10-Q, all of which such Company Reports will be Compliant. The Company hereby consents to the use of the Company Subsidiaries’ logos in connection with the Financing in a form and manner agreed with the Company; provided, however, that such logos are used solely in a manner that is not intended, or reasonably likely, to harm or disparage the Company or any Company Subsidiary or the reputation or goodwill of the Company or any Company Subsidiary. The Company will, upon funding reasonable request of the Debt Financing will beParent, satisfied, Parent and Sub shall use their its reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, upon obtaining knowledge thereof promptly following request by the Company, provide update any Required Information (to the Company copies extent it is available) to be included in any Offering Document to be used in connection with such Financing so that Parent may ensure that any such Required Information does not contain any untrue statement of all executed Debt Financing Agreementsmaterial fact or omit to state any material fact necessary in order to make the statements contained therein not materially misleading.
(c) Without limiting Notwithstanding the foregoingrequirements of Section 5.13(b), Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) solely Parent will be responsible for provision of any post-Closing pro forma financial information, including cost savings, synergies, capitalization, ownership or other pro forma adjustments (provided, that for the Debt Commitment Letter is terminated avoidance of doubt, the Company will provide Parent with customary reasonably available financial and other information relating to the Company and its Subsidiaries reasonably requested by Parent to allow Parent to prepare such pro forma financial information) and any financial projections of the Company for any reasonand after the Effective Time, (ii) Parent becomes aware neither the Company nor any Company Subsidiary or their respective Representatives will be required to enter into any certificate, document, agreement or instrument which will be effective prior to the Effective Time, (iii) nothing herein will require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any Company Subsidiary, (iv) none of the Company or any Company Subsidiary will be required to pay any commitment or other similar fee or incur any other liability in connection with the Financing prior to the Effective Time, (v) nothing herein will require cooperation or assistance from a Company director, officer or employee to the extent such Company director, officer or employee is reasonably likely to incur any personal financial liability by providing such cooperation or assistance that will not be repaid or reimbursed in full by Parent, (vi) delivery of any breach financial information in a form not customarily prepared by the Company or default any financial information with respect to a fiscal period that has not yet ended, or has ended less than forty-five (A45) by any Financing Source party days prior to the Debt Commitment Letter date of such request (or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause annual financials, ninety (B)90) days) or delivery of projections, such breach (vii) delivery of any legal opinions or default would reasonably be expected any certificate as to affect the availability of the Debt Financing solvency, or (iiiviii) a counterparty indicates in writing the taking of any action that would conflict with or orally that it will not provideviolate (x) the Company Charter or Company Bylaws, or it refuses to provideresult in the contravention of, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impairresult in a violation or breach of, delay or prevent consummation of all default under, any written agreement, contract, subcontract, lease, license understanding, instrument, note, bond, mortgage, indenture, option, warranty, insurance policy, benefit plan or other legally binding commitment to which the Company or any portion of its Subsidiaries is a party, in each case that are not contingent upon the Debt FinancingEffective Time or (y) any applicable Laws.
(d) Parent shall have will promptly, upon request by the right to substitute Company, reimburse the net cash proceeds received by Parent after the date hereof Company for all reasonable out-of-pocket costs and prior to the Closing from consummated offerings or other incurrences of debt expenses (including notesreasonable attorneys’ fees) incurred by Parent for all the Company or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid its Subsidiaries in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations cooperation of the Company and its Subsidiaries pursuant to contemplated by Section 6.14 shall no longer be in effect5.13(b). FurtherParent will indemnify and hold harmless the Company, Parent shall have the right to substitute commitments in respect its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid them in connection with the transactions contemplated by this Agreement and all conditions precedent to funding arrangement of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”including any action taken in accordance with this Section 5.13(d). True, correct ) and complete copies of each alternative financing commitment any information used in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectconnection therewith.
(e) On Parent and Merger Sub acknowledge and agree that the obtaining of Financing, or any Alternative Financing, is not a condition to Closing Date, Parent shall provide all funds required and reaffirm their obligation to effect consummate the repayment Transactions irrespective and independently of all indebtedness under the Company Credit Agreement in full in accordance with availability of the Company Credit AgreementFinancing or any Alternative Financing, subject to compliance with Section 6.14(a)(iii)fulfillment or waiver of the conditions set forth in Article VI.
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Eastman Chemical Co), Agreement and Plan of Merger (TAMINCO Corp)
Financing. (a) Subject to Parent, Amalgamation Sub and the terms and conditions of this Agreement, Parent Guarantors 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, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof not (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit consent of the Company) consent or agree to any amendment, supplementreplacement, replacement supplement or modification to be made to, or any waiver of any provision under, the Debt Equity Commitment Letter if such amendment, replacement, supplement, replacement, modification or waiver (Ai) reduces decreases the aggregate amount of the cash proceeds from Equity Financing to an amount that would be less than an amount that would be required to consummate the Debt Financing Amalgamation and make the other payments required by Parent, Amalgamation Sub and the Amalgamated Company hereunder or otherwise contemplated in connection herewith, (Bii) imposes new or additional conditions to the initial funding or otherwise expands expands, amends or modifies any of the conditions to the receipt of the Debt Equity Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that (iii) would reasonably be expected to (x) prevent, impede or delay or prevent the funding in full consummation of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing DateTransactions, or (yiv) materially and adversely affect impacts the ability of Parent or Amalgamation Sub to enforce its rights against the other parties to the Debt Equity Commitment Letter or the definitive agreements with respect thereto (providedLetter. Upon request, 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 delay or prevent the Closing). Parent shall promptly deliver furnish to the Company true, complete and correct copies a copy of any such replacement, amendment, modification modification, waiver or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) consent of or relating to maintain in effect the Debt Equity Commitment Letter (provided that promptly upon execution thereof. Upon any replacement, amendment, supplement or modification of the Debt Equity Commitment Letter may be amended, supplemented, replaced, modified or waived as provided made in compliance with this Section 6.137.07(a) (excluding any amendment for the sole purpose of joining or adding additional commitment parties thereto), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on provide a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide copy thereof to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting and the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (term “Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Equity Commitment Letter” shall be deemed to include mean the Debt Equity Commitment Letter which as so amended, replaced, supplemented or modified. Notwithstanding the foregoing, compliance by Parent with this Section 7.07 shall not relieve Parent or Amalgamation Sub of its obligation to consummate the Transactions whether or not the Equity Financing is not superseded by a New Debt Commitment Letter at the time in question available and each New Debt Commitment Letter to the extent then in effect, of Parent and (iii) any reference in Amalgamation Sub acknowledges that this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder Amalgamation and the other Transactions are not subject to a condition regarding contingent on Parent’s or Amalgamation Sub’s ability to obtain the financing (or any of its Affiliates’ obtaining funds alternative financing) or any specific term with respect to consummate the Merger and the transactions contemplated by this Agreementsuch financing.
Appears in 2 contracts
Sources: Amalgamation Agreement, Amalgamation Agreement (Global Sources LTD /Bermuda)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, necessary or advisable or proper to arrange and obtain consummate on the Closing Date the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant subject to the terms thereof conditions (including any the “market flex” provisions) set forth in the Debt Commitment Letter, including using its commercially reasonable best efforts to seek to enforce its rights under to:
(i) maintain in full force and effect the Debt Commitment Letter in accordance with the event of a breach terms and subject to the conditions thereof by until the financing provider(s) thereunder. Parent shall not, Merger is consummated or this Agreement is terminated in accordance with its terms; and without the Company’s prior written consentconsent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed) not permit any amendment, supplement, replacement amendment or modification to be made to, or not consent to any waiver of any provision or remedy under, and not replace, the Debt Commitment Letter Letter, in any case if such amendment, supplementmodification, replacement, modification waiver or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) replacement imposes new or additional conditions to the initial funding or otherwise expands materially amends or modifies any of the conditions to the receipt funding of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter Financing in a manner that would could reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (Closing; provided, that that, Parent may amend amend, modify or supplement the Debt Commitment Letter to (x) add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long who have not executed the Debt Commitment Letter as such action would not reasonably be expected to delay or prevent of the Closing). date hereof, (y) effectuate any “market flex” provisions contained therein; provided further, however, that, Parent shall promptly deliver disclose to the Company trueits intention to enter into any such amendment, complete modification, waiver or replacement of the Debt Commitment Letter prior to the effectiveness of such amendment, modification, waiver or replacement and correct shall promptly furnish to the Company copies of executed versions of any such amendment, modification modification, waiver or replacement.;
(bii) Parent shallsatisfy on a timely basis all conditions to the Debt Financing that are within its control;
(iii) negotiate, execute and shall cause its Affiliates deliver Debt Financing Documents that reflect and Representatives to, use its reasonable best efforts (A) to maintain are consistent with the terms contained in effect the Debt Commitment Letter (provided that including any “market flex” provisions related thereto) as the Debt Commitment Letter same may be amended, supplemented, replaced, modified or waived supplemented as provided in permitted by this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), Agreement; and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter Section 6.01 and Section 6.02 have been satisfied or waived or, upon funding of the Debt Financing will be, would be satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide full amount of the Debt Financing to comply with their obligations under be funded as contemplated by the Debt Commitment Letter and definitive financing at the Closing.
(b) Parent shall provide to the Company, upon request, copies of all executed agreements and other documents relating to fund on or before the Effective Time the Debt Financing. Parent shall Financing and keep the Company informed on a reasonably current basis and in reasonable detail of all material developments with respect to the status of its efforts to arrange the Debt Financing.
(c) Without the prior written consent of the Company (not to be unreasonably withheld, andconditioned or delayed), neither Parent nor any of its affiliates shall take any action that could reasonably be expected to materially delay or prevent the consummation of the Debt Financing.
(d) If any Financing Failure Event occurs, Parent shall (unless Parent determines that the affected portion of the Debt Financing is not reasonably required to consummate the Merger) promptly following request notify the Company thereof and use its commercially reasonable efforts to obtain, as promptly as practicable, on terms reasonably as favorable to Parent (as reasonably determined by Parent) as the Companyterms of the Debt Commitment Letter, provide alternative debt financing (“Debt Replacement Financing”) in an amount that would, together with other funds readily available to Parent, be sufficient to pay the aggregate Merger Consideration on the Closing Date. Parent shall deliver to the Company copies of all executed contracts or other arrangements pursuant to which any alternative source shall have committed to provide any portion of the Debt Replacement Financing Agreements(provided that any fee letters in connection therewith may be redacted with respect to interest rates, fee amounts, pricing caps and other similar economic terms (including any “market flex” provisions). Any Debt Replacement Financing shall be subject to the same obligations as set forth in this Section 5.19 with respect to the Debt Financing.
(ce) Without limiting the foregoing, Parent agrees to notify All non-public or otherwise confidential information regarding the Company promptlyand its Subsidiaries obtained by Parent or its representatives shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent shall be permitted to disclose such information to potential investors and lenders in connection with the Debt Financing subject to such investors and lenders entering into customary confidentiality undertakings with respect to such information.
(f) Notwithstanding anything contained in this Section 5.19 or anything else in this Agreement to the contrary, in no event shall the commercially reasonable efforts of Parent be deemed or construed to require Parent to, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reasonParent shall not be required to, (iix) Parent becomes aware incur or pay any fees to obtain a waiver or amendment of any breach or default (A) by any Financing Source party to term of the Debt Commitment Letter or any Debt Financing Agreement or Documents in excess (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case aggregate) of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing those contemplated by the Debt Commitment Letter on as of the date hereof, (y) agree to conditionality or economic terms set forth therein. of the Debt Financing that are less favorable to Parent shall promptly provide any information reasonably requested than those contemplated by the Company relating to Debt Commitment Letter (including any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent market flex provisions therein) as of the Companydate hereof, take any action or enter into any transaction that would reasonably be expected (z) obtain or seek equity financing to materially impair, delay supplement or prevent consummation of replace all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (SPAR Group, Inc.), Merger Agreement (SPAR Group, Inc.)
Financing. (a) Subject to Kimberly-Clark shall, and shall cause the terms and conditions of this AgreementKimberly-Clark Subsidiaries to, Parent shall use its their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain the Debt Committed Financing on the terms and conditions described set forth in the Debt Commitment Letter, including using their respective reasonable best efforts to (i) maintain in effect the Debt Commitment Letter pursuant until the Transactions are consummated and (ii) unless Kimberly-Clark shall have reduced the commitments under the Debt Commitment Letter to zero in accordance with the immediately preceding clause (i), (A) negotiate definitive agreements with respect to the facilities contemplated by the Debt Commitment Letter on the terms thereof and conditions set forth therein (including any “market flex” provisionsprovisions applicable to the Financing) including using (or on terms that will not materially delay or prevent the Closing or make the funding with respect to the Committed Financing less likely to occur), (B) satisfy or cause to be waived on a timely basis all conditions applicable to Kimberly-Clark set forth in the Debt Commitment Letter or such definitive agreements that are within its reasonable best efforts to seek to control, (C) upon the satisfaction or waiver of such conditions, consummate the Committed Financing on the Closing Date and (D) enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunderand such definitive agreements. Parent Kimberly-Clark shall not, without the Company’s prior written consentconsent of Kenvue, permit amend, modify, supplement, waive (or otherwise grant consent under) the Debt Commitment Letter or any definitive agreements in respect of the Committed Financing or replace all or any portion of the commitments in respect of the Financing, to the extent such amendment, modification, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 (xw) delay reduce the amount of the Committed Financing to an amount that would result in Kimberly-Clark having insufficient funds, when added with cash and marketable securities of Kimberly-Clark and any then-available Committed Financing, to pay the Required Amounts, (x)(i) impose new or additional conditions precedent to the initial funding of the Committed Financing other than as contemplated by the Debt Commitment Letter (as in effect on the date of this Agreement) or (ii) otherwise modify the conditions precedent to the initial funding of the Committed Financing (as in effect on the date of this Agreement) in a manner reasonably expected to delay, prevent or impede the funding in full of the Debt Committed Financing (or satisfaction of the conditions precedent to the Debt Committed Financing) on the Closing DateDate or make such funding materially less likely to occur, (y) delay in any material respect the Closing Date or (yz) adversely affect the ability of Parent Kimberly-Clark to enforce its rights against the other parties to the Debt Commitment Letter or (the definitive agreements with respect thereto effect described in clause (w) through (z), a “Prohibited Modification”); provided, that Parent however, Kimberly-Clark may amend amend, modify, supplement or waive any provision of the Debt Commitment Letter to (A) add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would that have not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect executed the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt date of the full amount of the Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement ifthis Agreement, in the case of this clause (B)each case, such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing as contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by date of this Agreement, (B) reduce or terminate the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent commitments thereunder as a result of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or an alternative financing which generates, taken together with other sources of funds immediately available to Kimberly-Clark, the Required Amounts, and (C) in any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided manner that (v) such offering or other incurrence of debt does not result in a breach Prohibited Modification. As soon as reasonably practicable, Kimberly-Clark will provide Kenvue with true and complete executed copies of any material amendment or default undersupplement to, or violation ofmodification or replacement of or waiver under, the Debt Commitment LetterLetter (subject, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the any fee letterletters, with only the to redaction solely of fee amounts, pricing, “market flex” provisions and other economic terms provisions that do not adversely affect are customarily redacted in connection with transactions of this type) made in compliance with this Section 7.07(a). Upon any such amendment, modification, supplement, replacement, waiver or consummation of an alternative financing, (A) the enforceability, availability or conditionality of, or the aggregate amount definitions of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New “Debt Commitment Letter is obtainedLetter” and “Financing” set forth in this Agreement shall be deemed to have been modified as appropriate to reflect such amendment, modification, supplement, replacement, waiver or alternative financing and (iB) any reference in this Agreement to the “Debt Committed Financing” shall include the debt mean financing contemplated by the Debt Commitment Letter as modified pursuant to clause (iiA) belowabove.
(b) If the Committed Financing in an aggregate principal amount (together with cash and marketable securities on hand or other sources of funds immediately available to Kimberly-Clark) at least equal to Required Amounts becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter, and such unavailable amount is necessary to pay the Required Amounts (such event, an “Original Financing Failure”), Kimberly-Clark shall promptly notify Kenvue in writing of the Original Financing Failure and Kimberly-Clark shall use its reasonable best efforts to obtain, as promptly as reasonably practicable, alternative financing from alternative sources that does not include conditions to obtaining the financing that are more onerous to Kimberly-Clark, taken as a whole, than those contained in the Debt Commitment Letter and in an amount at least equal to the aggregate principal amount of the Committed Financing or such unavailable portion thereof, as the case may be (the “Alternate Financing”) that is necessary to pay the Required Amounts, and to obtain new financing commitment letter(s) with respect to such Alternate Financing (the “New Commitment Letter(s)”), which shall replace the existing Debt Commitment Letter; provided that any such Alternate Financing shall not obligate Kenvue prior to the Closing as a surety, guarantor or indemnitor or to extend credit to any Person. Kimberly-Clark shall promptly provide true and complete copies of such New Commitment Letter(s) (including all attachments thereto) and all related fee letters (subject, in the case of any fee letters, to redaction solely of fee and other economic provisions that are customarily redacted in connection with transactions of this type) to Kenvue. In the event New Commitment Letter(s) are obtained, (iii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt New Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question Letter(s) and each New Debt Commitment Letter to the extent then in effect, related fee letters and (iiiii) any reference in this Agreement to the “fee letterCommitted Financing” shall be deemed include the financing contemplated by the New Commitment Letter(s).
(c) Kimberly-Clark shall keep Kenvue informed on a reasonably current basis and in reasonable detail of the status of its efforts to include arrange the Financing, including, for the avoidance of doubt, notifying Kenvue of any fee letter relating reduction in the aggregate principal amount of the Committed Financing in connection with Kimberly-Clark obtaining other Financing in lieu thereof as contemplated by the Debt Commitment Letter and permitted hereby and thereby. Kimberly-Clark shall give Kenvue prompt notice of (i) any material breach or material default by any party to the Debt Commitment Letter, or any definitive agreements related to the Committed Financing, in each case, of which Kimberly-Clark becomes aware, (ii) the receipt of any written notice or other written communication, in each case received from any Financing Source with respect to any (x) material breach of Kimberly-Clark’s obligations under the Debt Commitment Letter or definitive agreements related to the Committed Financing, or default, termination or repudiation by any party to the Debt Commitment Letter that is not superseded by or definitive agreements related to the Committed Financing or (y) material dispute between or among any New parties to the Debt Commitment Letter or definitive agreements related to the Committed Financing or any provisions of the Debt Commitment Letter, in each case with respect to the obligation to fund the amount of the Committed Financing to be funded at Closing and (iii) if for any reason Kimberly-Clark has determined in good faith that it will not be able to obtain all or any portion of the time in question and each New Committed Financing on the terms contemplated by the Debt Commitment Letter in an amount sufficient, when added with cash and marketable securities of Kimberly-Clark, to pay the Required Amounts. Notwithstanding the foregoing, in no event shall Kimberly-Clark be required to provide access to or disclose information that would jeopardize any attorney-client privilege of, or conflict with any confidentiality requirements applicable to, to Kimberly-Clark or any of its Subsidiaries (as reasonably determined in good faith by Kimberly-Clark); provided that Kimberly-Clark and the Kimberly-Clark Subsidiaries shall use reasonable best efforts to provide an alternative means of disclosing or providing such information, and in the case of any confidentiality obligation, Kimberly-Clark shall, to the extent then in effectpermitted by such confidentiality obligations, notify Kenvue if any such information that Kenvue has specifically identified and requested is being withheld as a result of any such obligation of confidentiality.
(ed) On From and after the date of this Agreement, and through the earlier of the Closing Date, Parent shall provide all funds required to effect and the repayment of all indebtedness under the Company Credit date on which this Agreement in full is terminated in accordance with Article IX, Kenvue shall, and Kenvue shall cause each Kenvue Subsidiary to, and Kenvue and each Kenvue Subsidiary shall use its reasonable best efforts to cause the Company appropriate Representatives of Kenvue and each Kenvue Subsidiary to (or, with respect to clauses (iv) and (v), to take or cause to be taken (without any “reasonable best efforts” or other qualifier)), provide such customary cooperation as is reasonably requested by Kimberly-Clark, any Kimberly-Clark Subsidiary or any of its or their respective Representatives in connection with the arrangement and consummation of the Committed Financing or any other Financing, including using reasonable best efforts to (i) cause appropriate senior management of Kenvue and any Kenvue Subsidiary reasonably available, upon reasonable advance notice and during normal business hours, to participate in a reasonable number of meetings and calls, diligence sessions, drafting sessions, road shows, sessions with rating agencies in connection with the Financing, (ii) assist with the preparation of (x) materials for rating agency presentations, lender presentations and investor and road show presentations, (y) bank information memoranda, registration statements, prospectuses, offering memoranda and private placement memoranda and (z) similar documents, in each case, required or customary in connection with the Financing or otherwise reasonably requested by Kimberly-Clark, (iii) provide customary authorization and representation letters to the Financing Sources authorizing the distribution of information to prospective lenders, (iv) provide the lead arrangers, agents, underwriters and initial purchasers for, and prospective lenders of, the Financing, at least three Business Days prior to the closing date of the applicable Financing (to the extent requested at least ten Business Days prior to the closing date of the applicable Financing) with all documentation and other information required with respect to Kenvue and the Kenvue Subsidiaries in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, Title III of Pub. L. 107-56 and 31 C.F.R. § 1010.230, the Office of Foreign Assets Control and the Foreign Corrupt Practices Act, (v) provide, as promptly as reasonably practicable, the Required Financial Information, (vi) cause its independent accountants to provide assistance and cooperation with any offering of securities, including (x) providing any necessary written consents to use their audit reports relating to Kenvue and the Kenvue Subsidiaries and to be named as an “Expert” in any document related to any Financing, (y) providing any customary “comfort” letters (including customary “negative assurance” comfort) and (z) participating in accounting due diligence sessions, (vii) cooperate with the Financing Related Parties’ due diligence, to the extent customary or reasonable, (viii) provide, as promptly as reasonably practicable, all financial and other customary financial information regarding Kenvue and the Kenvue Subsidiaries as may be reasonably necessary for Kimberly-Clark to prepare pro forma financial statements required or desirable for a public offering of debt or equity or equity-linked securities or required by Regulation S-K and Regulation S-X, including in connection with the Financing (it being understood that Kimberly-Clark shall be solely responsible for the preparation of any pro forma financial information or pro forma financial statements), (ix) cooperate with the preparation and delivery of customary definitive financing documents, including, in each case, the schedules thereto, or documents contemplated by the Financing, (x) cooperate with Kimberly-Clark and the Kimberly-Clark Subsidiaries in connection with any replacement letters of credit issued pursuant to the Kenvue Credit AgreementFacility, (xi) facilitate discussions with Kenvue’s existing lender and banking relationships and (xii) provide customary guarantee documentation at the Closing of the Financing, as required by the Financing Related Parties.
(i) The cooperation set forth in Sections 7.07(d), (j) and (k) shall not be required to the extent that it would (A) require Kenvue to take any action that, in the good faith judgment of Kenvue, unreasonably interferes with the ongoing business or operations of Kenvue and/or Kenvue Subsidiaries, (B) require Kenvue or any Kenvue Subsidiary to incur (1) any financing fee or (2) any other fee, expense or other liability that is not, subject to compliance with Section 6.14(a)(iiithe limitations contained therein , subject to reimbursement or is not otherwise indemnified by Kimberly-Clark, (C) cause any representation or warranty in this Agreement to be breached (unless waived in advance by Kimberly-Clark), (D) cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement, (E) be reasonably expected to cause any director, officer or employee of Kenvue or any Kenvue Subsidiary to incur any personal liability or (F) cause any breach of any applicable Law or any material Contract to which Kenvue or any Kenvue Subsidiary is a party and (ii) Kenvue and the Kenvue Subsidiaries shall not be required to (w) enter into, execute, or approve any agreement or other documentation prior to the Closing or agree to any change or modification of any existing agreement or other documentation that would, in each case, be effective prior to the Closing (other than the execution of customary authorization and representation letters) (x) deliver any certificate or take any other action that would reasonably be expected to result in personal liability to a director, officer or other personnel, (y) deliver any legal opinion or (z) otherwise provide any information or take any action to the extent it could result in (I) a loss or waiver of any privilege or (II) the disclosure of any trade secrets, customer-specific data or competitively sensitive information not otherwise required to be provided under this Agreement or the violation of any confidentiality obligation; provided that Kenvue and the Kenvue Subsidiaries shall use reasonable best efforts to provide an alternative means of disclosing or providing such information, and in the case of any confidentiality obligation, Kenvue shall, to the extent permitted by such confidentiality obligations, notify Kimberly-Clark if any such information that Kimberly-Clark has specifically identified and requested is being withheld as a result of any such obligation of confidentiality.
(f) Notwithstanding anything Subject to Kimberly-Clark’s indemnification obligations under Section 7.07(g), Kenvue hereby consents to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any customary use of its Affiliatesand Kenvue Subsidiaries’ obtaining funds logos and trademarks in connection with the Financing; provided that such logos and trademarks are used solely in a manner that is not intended to consummate the Merger and the transactions contemplated by this Agreement.would not reasonably be expected to harm or dispara
Appears in 2 contracts
Sources: Merger Agreement (Kimberly Clark Corp), Merger Agreement (Kenvue Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent 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, advisable or proper to arrange consummate and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the (or on revised terms thereof (including that do not contain any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 terms which would reasonably be expected to (x) prevent, materially delay or prevent materially impede the funding in full consummation of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (providedtransactions contemplated by this Agreement), 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its including using reasonable best efforts to (Ai) to maintain in effect the Debt Commitment Letter, (ii) satisfy on a timely basis all conditions to the funding of the Financing set forth in the Commitment Letter, (iii) enforce the terms of the Commitment Letter and (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (Biv) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) thereto on the terms and conditions that are not materially less favorable to Parent than those contained in contemplated by the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Merger Sub shall use their reasonable best efforts to enforce their may enter into or authorize any amendment, replacements, supplement or other modification of, or waive any of its material rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and without the Company’s prior consent, other than any amendment, replacement, supplement or other modification to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail waiver of any provision of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to prevent, materially impair, delay or prevent materially impede the consummation of all the Financing or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) . Parent shall use its reasonable best efforts to extend the proceeds commitment to provide the Financing in accordance with the terms of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided if it becomes necessary to ensure that the Company. If commitments under Financing is available at Closing.
(b) In the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or event any portion of the Debt Financing becomes unavailable on the terms and conditions described in or contemplated by the Commitment Letter for any reason, Parent shall, in consultation with the Company, use its reasonable best efforts to arrange to obtain, as promptly as practicable following the occurrence of such event, alternative financing from the same and/or or alternative financing sources so long as (the aggregate “Alternative Financing”) in an amount sufficient to enable Parent to fund the Merger Consideration, which Alternative Financing would not contain any provisions that would reasonably be expected to prevent, materially delay or materially impede the consummation of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (Financing or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement. If an Alternative Financing is obtained pursuant to this Section 5.14(b), Parent shall obtain, and when obtained, provide the Company with a copy of, a new financing commitment that provides for such Alternative Financing, and thereafter the “Commitment Letter” as defined herein shall refer to such financing commitment in respect of the Alternative Financing.
(c) Parent acknowledges and agrees that obtaining the Financing is not a condition to the Closing. For the avoidance of doubt, if the Financing has not been obtained, Parent shall continue to be obligated, until such time as the Agreement is terminated in accordance with its terms and subject to the fulfillment or waiver of the condition set forth in Article VI, to complete the Merger on the terms contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Williams Companies Inc), Merger Agreement (Williams Companies Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Purchaser 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 or proper to arrange and obtain the Debt Financing on the terms and conditions described in or contemplated by the Debt Commitment Letter pursuant and shall not agree to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision under, or remedy under the Debt Commitment Letter without the prior written consent of the Company if such amendmentamendments, supplement, replacement, modification modifications or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing waivers would or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 reduce the aggregate amount of the Debt Financing below the amount contemplated in the Debt Commitment Letter or prevent (y) impose new or additional conditions to the funding in full receipt of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent that, for the avoidance of doubt, Purchaser may replace or amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as entities, if the addition of such action additional parties, in the aggregate, would not reasonably be expected to prevent or materially delay or prevent impair the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability availability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations financing under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time). In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent Purchaser shall keep the Company Seller Representatives reasonably informed on a current basis and in reasonable detail of the status of its Purchaser’s efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) . Without limiting the generality of the foregoing, Parent agrees to notify Purchaser shall give the Company promptly, and in Seller Representatives prompt notice: (A) of any material breach or material default (or any event within two (2or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or material default) Business Days, if at by any time prior party to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, or definitive document related to the Debt Financing of which Purchaser becomes aware; (iiB) Parent becomes aware of the receipt of any breach written notice or default (A) other written communication from any party to the Debt Commitment Letter with respect to any breach, default, termination or repudiation by any Financing Source party to the Debt Commitment Letter or any definitive document related to the Debt Financing Agreement or (B) any other party to provisions of the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected definitive document related to affect the availability of the Debt Financing or Financing; and (iiiC) a counterparty indicates in writing or orally that it if Purchaser will not provide, or it refuses be able to provide, obtain all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Commitment Letter on or the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating definitive documents related to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or . If any portion of the Debt Financing by reducing commitments under becomes unavailable on the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result terms and conditions contemplated in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate Purchaser shall use its reasonable best efforts to arrange and obtain alternative financing from alternative sources in an amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement upon terms and all conditions precedent not less favorable, taken as a whole, to funding Purchaser (in the reasonable judgment of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company thanPurchaser) the conditions precedent set forth than those in the Debt Commitment LetterLetter as promptly as practicable following the occurrence of such event but no later than the Business Day immediately prior to the Closing Date. For the avoidance of doubt, in no event shall Purchaser be required to supplement seek or replace obtain equity financing.
(b) Prior to the Closing, the Company shall use reasonable best efforts and shall cause the Company Subsidiaries to use reasonable best efforts, and shall use its reasonable best efforts to cause its respective representatives to, provide to Purchaser, at Purchaser’s sole expense and in each case without undue hardship on or interference to the Company or any Company Subsidiary, all reasonable cooperation reasonably requested by Purchaser that is necessary in connection with the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each or any alternative financing commitment arranged by Purchaser in respect of such Alternative compliance with Section 6.6(a), including:
(i) furnishing Purchaser and the Debt Financing (each, a “New sources and any alternative sources arranged by Purchaser in compliance with Section 6.6(a) all financial and other information relating to the Company and Company Subsidiaries as Purchaser shall reasonably request in order to consummate the Debt Commitment Letter”Financing or any alternative financing arranged by Purchaser in compliance with Section 6.6(a), together with including, if Purchaser is to pursue equity financing by way of a public offering of its share capital, all related fee letters Company information, financial statements and associated engagement letters (solely in the case financial data of the fee lettertype required in registration statements on an applicable form by Regulation S-X and Regulation S-K under the Securities Act (subject to exceptions customary for private placements pursuant to an applicable exemption under the Securities Act) and of a type and form customarily included in private placements pursuant to an applicable exemption under the Securities Act for financings similar to the Debt Financing or any alternative financing arranged by Purchaser in compliance with Section 6.6(a) and subject to exceptions customary for such financings (including, to the extent applicable with only respect to such financial statements, the fee amountsreport of the Company’s auditors thereon and related management discussion and analysis of financial condition and results of operations),
(ii) using reasonable best efforts to help the financing sources benefit from the existing lending relationships of the Company and the Company Subsidiaries;
(iii) participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality prospective lenders and purchasers of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redactedor any alternative financing arranged by Purchaser in compliance with Section 6.6(a) and senior management and representatives, with appropriate seniority and expertise, of the Company), will be promptly provided presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Debt Financing or any alternative financing arranged by Purchaser in compliance with Section 6.6(a);
(iv) assisting with the preparation of materials for rating agency presentations, bank information memoranda, offering documents, private placement memoranda and similar documents required in connection with the Debt Financing or any alternative financing arranged by Purchaser in compliance with Section 6.6(a) (including requesting any consents of accountants for use of their reports in any materials relating to the Company. In Debt Financing or any alternative financing arranged by Purchaser in compliance with Section 6.6(a) and the event delivery of one or more customary representation letters),
(v) facilitating communications by Purchaser with existing lenders of the Company and the Company Subsidiaries;
(vi) obtaining accountants’ comfort letters and legal opinions as reasonably requested by Purchaser and facilitating the pledging of collateral by Purchaser and in connection with the Debt Financing or any New Debt Commitment Letter is obtainedalternative financing arranged by Purchaser in compliance with Section 6.6(a), including, executing and delivering any documents as may be reasonably requested by Purchaser (iincluding a certificate of the financial director or another officer of similar standing of the Company with respect to solvency matters as of the Closing, on a pro forma basis);
(vii) any reference in this Agreement causing the taking of corporate actions (subject to the “occurrence of the Closing) by the Company and the Company Subsidiaries reasonably necessary to permit the completion of the Debt Financing” shall include Financing or any alternative financing arranged by Purchaser in compliance with Section 6.6(a);
(viii) facilitating the debt financing execution and delivery at the Closing of definitive documents related to the Debt Financing on the terms contemplated by the Debt Commitment Letter as modified pursuant or any alternative financing arranged by Purchaser in compliance with Section 6.6(a), and
(ix) cooperating with consultants or others engaged to clause (ii) belowundertake field examinations and appraisals, (ii) any reference including furnishing information to such persons in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question respect of accounts receivable, inventory and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectother applicable assets.
(ec) On The Company hereby consents to the reasonable use by Purchaser prior to Closing Date, Parent shall provide all funds required to effect of the repayment of all indebtedness under Company’s and the Company Credit Agreement Subsidiaries’ logos for the sole purpose of obtaining the Debt Financing or any alternative financing arranged by Purchaser in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii6.6(a), which right to use shall not be licensed or assigned by Purchaser to any third party.
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Home Inns & Hotels Management Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant Financing Letters, after giving effect to the market flex terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Fee Letter, and shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter Financing Letters or the Fee Letter, if such amendment, supplement, replacement, modification or waiver (Ai) reduces the aggregate amount of the cash proceeds from Financing (including by changing the Debt Financing amount of fees to be paid or original issue discount) or (Bii) imposes new or additional conditions to the initial funding or other terms or otherwise expands expands, amends or modifies any of the conditions to the receipt of the Debt Financing, Financing or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter terms in a manner that would could reasonably be expected to (x) delay or prevent the Closing (y) make the timely funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, Financing less likely to occur or (yz) adversely affect impact the ability of Parent and Merger Sub to enforce its their rights against the other parties to the Debt Commitment Letter Financing Letters or the definitive agreements with respect thereto (provided, 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Merger Sub shall use their reasonable best efforts have the right to enforce their rights under, and cause the Financing Sources, lenders and the substitute other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
debt (cbut not equity financing) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on from the same and/or alternative financing sources; provided, further, that such substitution shall only be permitted if (i) the terms would not be reasonably expected to delay or prevent the Closing or make the timely funding of the Debt Financing or satisfaction of the conditions to obtaining the Debt Financing less likely to occur, (ii) the conditions to the Debt Financing set forth therein. Parent shall promptly provide any information reasonably requested by in the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent Debt Commitment Letter as of the Company, take any action date hereof would not be expanded or enter into any transaction modified in a manner that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt and (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (wiii) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash terms and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing areare not, in respect of certainty of fundingthe aggregate, equivalent to (or more less favorable to the Company than) the conditions precedent set forth than those in the Debt Commitment Letter, after giving effect to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely market flex terms in the case Fee Letters and provided, further, that any such substitute financing shall not obligate any of Stockholder or its Affiliates (other than the fee letterCompanies) as a surety, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability guarantor or conditionality of, indemnitor or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Companyextend credit to any Person. In the event any New Debt Commitment Letter is obtained, (i) any Any reference in this Agreement to the (A) “Financing,” “Equity Financing” and “Debt Financing” shall include the debt financing contemplated by the Debt Financing Letters as amended or modified in compliance with this Section 5.11 and (B) “Financing Letters,” “Equity Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the Letter,” “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letterFee Letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time such documents as amended or modified in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with this Section 6.14(a)(iii)5.11.
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (EVERTEC, Inc.), Merger Agreement (Popular Inc)
Financing. (a) Subject Notwithstanding anything herein to the terms and conditions of this Agreementcontrary, Parent and Merger Sub acknowledge and agree that obtaining the Financing or any Alternate Financing is not a condition to consummation of the Transactions, and that, irrespective and independently of the availability of the Financing or any Alternate Financing, Parent and Merger Sub shall be obligated to pay for the tendered Shares and consummate the Merger and the other Transactions as provided herein, subject to the satisfaction or waiver of the Tender Offer Conditions or the conditions set forth in Article VI, as applicable.
(b) Each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain the Debt Financing on the terms and subject to the conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Financing Commitments, shall not, without until after the Company’s prior written consentEffective Time, permit, effect or cause to be effected any voluntary or mandatory termination, prepayment or reduction in the aggregate amount of the Financing or the respective commitments contained in the Financing Commitments, and shall not permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver by Parent or Merger Sub of any provision under, or remedy under the Debt Commitment Letter Financing Commitments if such amendment, supplement, replacement, modification or waiver would (Ai) reduces reduce the aggregate amount of the cash proceeds from Financing (including by changing the Debt Financing amount of fees to be paid or original issue discount of the Financing) or (Bii) imposes impose new or additional conditions to the initial funding conditions, or otherwise expands amend, modify or expand any of the conditions conditions, to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter Financing in a manner that that, individually or in the aggregate with other such amendments, modifications or waivers, would reasonably be expected to (xA) have a Parent Material Adverse Effect or (B) delay or prevent make the funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, less likely to occur or (yC) adversely affect impact the ability of Parent or Merger Sub to enforce its their rights against the other parties to the Debt Commitment Letter Financing Commitments or the definitive agreements with respect thereto thereto; it being understood and agreed that, notwithstanding the foregoing provisions of this sentence, Parent or Merger Sub may reduce (providedthrough voluntary or mandatory terminations or otherwise) the aggregate amount of the Financing in connection with any cash received by Parent or Merger Sub from other sources (including by reason of a capital market or other financing transaction) that is available to satisfy the obligations of Parent or Merger Sub under this Agreement. Subject to the limitations set forth in Section 4.2(f), that Parent and Merger Sub may replace or amend the Debt Commitment Letter Financing Commitments to add or replace agents, co-agents, lenders, lead arrangers, joint bookrunners, syndication agents managers or similar other entities so long that have not executed the Financing Commitments as of the date hereof, if the addition of such action additional parties, individually or in the aggregate with other such additions, would not reasonably be expected to prevent, delay or prevent impair the Closing)availability of the financing under the Financing Commitments or have a Parent Material Adverse Effect. Without limiting the foregoing, Parent and Merger Sub shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its their reasonable best efforts to (Au) to maintain in effect the Debt Commitment Letter (provided that Financing Commitments until the Debt Commitment Letter may be amendedOffer, supplemented, replaced, modified or waived as provided in this Section 6.13)the Merger and the other Transactions are consummated, (Bv) satisfy (or have waived) all conditions and covenants applicable to negotiate Parent and Merger Sub in the Financing Commitments at or prior to the Acceptance Time or the Closing, as applicable, and otherwise comply with their obligations under the Financing Commitments, (w) enter into definitive agreements with respect to the Debt Commitment Letter Financing Commitments on the terms and subject to the conditions (including the “Debt flex provisions) contemplated by the Financing Agreements”Commitments, (x) enforce their rights under the Financing Commitments, including any rights to cause the Financing Sources and other Persons providing, on the terms and conditions that are not materially less favorable set forth therein, the Financing to Parent than those contained in fund, on the Debt Commitment Letterday of the consummation of the Offer, (C) the Merger or the other Transactions, as applicable, the Financing contemplated to satisfy be funded on a timely basis such day by the Financing Commitments (or obtain the waiver of), and in a manner that will not impede the ability of the parties such lesser amount as may be required to consummate the MergerOffer, all conditions to receipt of the full amount of Merger and the Debt 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, to other Transactions) and (y) consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding consummation of the Debt Financing will beOffer, satisfiedthe Merger or the other Transactions, as applicable. Parent and Merger Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. 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 FinancingFinancing (or replacement thereof) as the Company may reasonably request, and, promptly following request by and shall give the Company, provide Company prompt notice of any development with respect to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay have a Parent Material Adverse Effect; provided that in no event will Parent or prevent consummation of all Merger Sub be under any obligation to disclose any information that is subject to attorney-client or similar 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.
(i) If any portion of the Debt FinancingFinancing becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Financing Commitments, Parent shall use its reasonable best efforts to arrange and obtain alternative financing from alternative sources on terms and subject to the conditions that are no less favorable, in the aggregate, to Parent (taking into account the flex provisions set forth in the Financing Commitments) than those set forth in the Financing Commitments, in an amount sufficient to consummate the Offer, the Merger and the other Transactions as promptly as practicable following the occurrence of such event.
(dii) Parent shall have the right from time to time to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings other debt or other incurrences of debt (including notes) by Parent equity financing for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing aresource, in respect of certainty of fundingeach case, equivalent to (or more favorable in a manner not materially less beneficial to the Company than) Company, Parent and Merger Sub as compared to the conditions precedent set forth Financing Commitments (and no less beneficial in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies terms of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, confidentiality or the aggregate amount of proceeds funds available underunder the Financing); provided, the Debt Financing contained therein redacted)however, will that any such financing arranged in accordance with this Section 5.13(b)(ii) shall be promptly provided subject to the Companysame limitations that apply to the Financing Commitments as set forth in the first sentence of this Section 5.13(b). In the event any New Debt Commitment Letter is obtained, For purposes of this Agreement: (iA) any reference financing arranged in accordance with Section 5.13(b)(i) above or this Agreement Section 5.13(b)(ii) shall be referred to as the “Debt Alternate Financing”; (B) the term “Financing” shall be deemed to include the debt financing contemplated by the Debt Commitment Letter Financing Commitments as permitted to be amended or modified pursuant to clause by this Section 5.13(b) and/or any Alternate Financing; and (iiC) below, (ii) any reference in this Agreement to the term “Debt Commitment LetterFinancing Commitments” shall be deemed to include such Financing Commitments as permitted to be amended or modified by this Section 5.13(b) and/or any new commitment letter (the Debt Commitment Letter which is not superseded by a “New Debt Commitment Letter at the time in question Financing Commitments”) entered into with respect to any Alternate Financing (it being understood and each New Debt Commitment Letter agreed that any Alternate Financing shall be subject to the extent then in effect, terms and (iii) any reference in this Agreement conditions hereof that apply to “fee letter” Financing Commitments). Parent and Merger Sub shall be deemed to include any fee letter relating to provide the Debt Commitment Letter that is not superseded by Company with a copy of any New Debt Commitment Letter at Financing Commitments obtained by Parent or Merger Sub in connection with an Alternate Financing as promptly as practicable following the time in question execution thereof (other than fees and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iiiother information customarily redacted from such agreements).
(fc) Notwithstanding anything Prior to the contrary contained hereinAcceptance Time, Parent’s obligations hereunder the Company shall (and shall cause its Subsidiary to) provide to Parent and Merger Sub, and shall use reasonable best efforts to cause Representatives of the Company and its Subsidiary to provide to Parent and Merger Sub, all cooperation reasonably requested in writing by Parent and Merger Sub that is necessary in connection with the Financing, including using reasonable best efforts to, in each case to the extent reasonably requested: (i) cooperate with the marketing efforts of Parent and lenders for any of the Financing, including using reasonable best efforts to cause its Representatives to be available, during normal working hours and upon reasonable notice, to participate in meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, and using its reasonable best efforts to ensure that any syndication effort benefits from any existing banking relationship; (ii) assist with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, road show presentations and similar documents necessary, proper or advisable in connection with the Financing; (iii) provide to Parent and Merger Sub, and use reasonable best efforts to cause Representatives of the Company and its Subsidiary to provide to Parent and Merger Sub all financial information regarding the Company and its Subsidiary required to be delivered pursuant to Section 2 of Exhibit B of the Financing Commitments or required in connection with the preparation of the Offering Documents referred to in Section 8 of Exhibit B of the Financing Commitments; (iv) obtain consent from its certified independent auditors to SEC filings and offering memoranda that include or incorporate Company consolidated financial information (with such changes as the Company and its auditors deem necessary or appropriate), in each case, to the extent such consent is required, together with auditors’ reports and comfort letters with respect to financial information relating to the Company and its Subsidiary in customary form; (v) provide information regarding the Company and its Subsidiary reasonably required to assist in the preparation of pro forma financial statements by Parent and Merger Sub; provided that it is understood that assumptions underlying the pro forma adjustments to be made are not the sole responsibility of Parent and/or Merger Sub; (vi) provide assistance in the preparation of definitive financing documents and providing any sources of Financing (subject to confidentiality) with reasonable access to the properties, books and records of the Company and its Subsidiary; (vii) provide other information regarding the Company and its Subsidiary reasonably required by Parent and Merger Sub in connection with preparation of the Offering Document referred to in Section 8 of Exhibit B of the Financing Commitments (it being understood that preparation of the Offering Document is the responsibility of Parent and Merger Sub); (viii) provide reasonable cooperation with the Financing Sources, other potential financing sources and their respective agents with respect to their due diligence, including access to documentation reasonably requested by persons in connection with capital markets transactions; and (ix) provide all documentation and other information required by any Governmental Entity with respect to the Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and in any event at least five (5) days prior to the Acceptance Time. Notwithstanding the foregoing, (A) no obligation of the Company or its Subsidiary under any certificate, document or instrument executed pursuant to the foregoing shall be effective until the Acceptance Time (or such later time set forth in such certificate, document or instrument), and neither the Company nor its Subsidiary nor any of its respective Representatives shall be required to take any action under any such certificate, document or instrument that is not contingent upon the consummation of the Offer (including the entry into any agreement that is effective before consummation of the Offer) or that would be effective prior thereto, (B) nothing herein shall require cooperation to the extent that such cooperation would interfere unreasonably with the business or operations of the Company or its Subsidiary and (C) neither the Company nor its Subsidiary shall be required to issue any offering or information document. The Company hereby consents to the use of the logos of the Company and its Subsidiaries in connection with the syndication or marketing of the Financing; provided that such logos are used in a condition regarding Parent’s manner that is not intended to harm or disparage the Company, its Subsidiaries or their marks; provided, further, that such logos are used solely in connection with a description of the Company, its business and products or the Transactions and shall not appear on the cover of any rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, road show presentations and similar documents used in connection with the Financing. Neither the Company nor its Subsidiary shall be required to bear any cost or expense or to pay any commitment or other similar fee or make any other payment in connection with the Financing or any of the foregoing prior to the Acceptance Time. Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs incurred by the Company or its AffiliatesSubsidiary in connection with such cooperation and indemnify and hold harmless the Company, its Subsidiary and their respective Representatives from and against any and all costs or expenses (including reasonable attorneys’ obtaining funds fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of the arrangement of the Financing (including any action taken in accordance with this Section 5.13(c)) and any information utilized in connection therewith (other than historical information and other information relating to consummate the Merger and Company or its Subsidiary provided by the transactions contemplated Company in writing specifically for use in the Financing offering documents). Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs incurred by the Company or its Subsidiary in connection with this AgreementSection 5.13(c).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Gilead Sciences Inc), Merger Agreement (Pharmasset Inc)
Financing. (a) Subject Parent shall use reasonable best efforts to:
(i) maintain in effect the Commitment Letter and Fee Letter in accordance with their terms; and
(ii) satisfy (or, if deemed advisable by Parent, obtain the waiver of) on a timely basis all conditions in the Commitment Letter, Fee Letter and the Definitive Agreements and comply with its obligations thereunder.
(b) Unless, and to the terms extent, Parent or Merger Sub have sufficient cash from other sources (including by reason of a capital markets or other financing transaction) available to satisfy their obligations under this Agreement, from and conditions after the execution of this Agreement, Parent 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, advisable or proper to arrange and obtain the proceeds of the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) and Fee Letter, including using its reasonable best efforts to:
(i) negotiate definitive agreements with respect to seek to enforce its rights under the Debt Commitment Letter Financing (the “Definitive Agreements”) not materially less favorable to Parent and Merger Sub, in the event of a breach thereof by aggregate, than the financing provider(sterms and conditions contained therein (including, as necessary, the “flex” provisions contained in the Fee Letter); and
(ii) thereunder. consummate the Debt Financing at or prior to the Closing.
(c) Parent shall not, without the Company’s prior written consentconsent of the Company (which shall not be unreasonably withheld, delayed, conditioned or denied), permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision (including any remedy) under, or voluntarily replace (it being understood that any Alternative Debt Financing shall not be deemed a voluntary replacement for purposes of the Debt sentence), the Commitment Letter or Fee Letter if such amendment, supplementmodification, replacement, modification or waiver or voluntary replacement (Aw) reduces the aggregate amount of the cash proceeds from the Debt Financing adds new (or (Badversely modifies any existing) imposes new or additional conditions to the initial funding or otherwise expands 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 in full consummation of the Debt Financing (or satisfaction of as compared to those in the conditions to the Debt Financing) Commitment Letter and Fee Letter as in effect on the Closing Datedate of this Agreement, or (yx) adversely affect affects the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter, Fee Letter or the definitive agreements with respect thereto Definitive Agreements as so amended, replaced, supplemented or otherwise modified, relative to the ability of Parent to enforce its rights against such other parties to the Commitment Letter and Fee Letter as in effect on the date of this Agreement, (provided, that Parent may amend y) reduces the aggregate amount of the Debt Financing (unless after giving effect to such reduction, the representation and warranty in Section 5.09(d) shall be true and correct), or (z) would otherwise reasonably be expected to prevent, materially impede or materially delay the Closing; provided that, for the avoidance of doubt, no consent from the Company shall be required for (A) any amendment, replacement, supplement or modification of the Commitment Letter that is limited to add or replace adding lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as of the date of this Agreement (including in replacement of a Lender), (B) implementation or exercise of any “flex” provisions provided in the Fee Letter as in effect as of the date hereof or (C) any amendment, replacement, supplement or modification to the Commitment Letter, Fee Letter or Definitive Agreements so long as such action would not reasonably be expected to delay or prevent prohibited by the Closingforegoing clauses (w) - (z). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(bd) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company reasonably informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange consummate the Debt Financing, and, promptly following request by the Company, . Parent shall provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware with prompt notice of any breach breach, default, termination or default repudiation (Aor any written notice thereof) by any Financing Source party to any Commitment Letters or the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case Definitive Agreements of this clause (B), such breach or default which Parent gains knowledge and that would reasonably be expected to affect prevent, materially impede or materially delay the availability Closing. Unless, and to the extent, Parent or Merger Sub have sufficient cash from other sources (including by reason of a capital markets or other financing transaction) available to satisfy their obligations under this Agreement, from and after the Debt Financing or (iii) a counterparty indicates execution of this Agreement, in writing or orally the event that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested becomes unavailable (other than as a result of a breach by the Company relating to any circumstances referred to in of this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without Agreement which prevents or renders impracticable the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further), Parent shall have will (1) use its reasonable best efforts to obtain alternative debt financing (the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True) from the same or other sources, correct in an amount such that the representation in Section 5.09(d) shall be true and complete copies of each alternative financing commitment in respect of such correct, and which Alternative Debt Financing (eachdoes not include any incremental conditionality to the consummation thereof that are more onerous to Parent or the Company, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case aggregate, than the conditions set forth in the Commitment Letter and Fee Letter in effect as of the fee letter, with only date of this Agreement and (2) promptly notify the fee amounts, pricing, “market flex” provisions Company of such unavailability and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or reason therefor.
(e) For purposes of the aggregate amount of proceeds available under, the Debt Financing contained therein redactedforegoing Sections 6.10(a) – (d), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the term “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include any commitment letter (or similar agreement) with respect to any Alternative Debt Financing, (ii) the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to term “fee letterFee Letter” shall be deemed to include any fee letter relating (or similar agreement) with respect to any Alternative Debt Financing and (iii) the term “Lenders” shall be deemed to include any lenders providing the Alternative Debt Commitment Letter Financing. Other than for purposes of Section 5.09, the term “Debt Financing” shall be deemed to include any permitted Alternative Debt Financing or any capital markets or other financing transactions intended to or that is not superseded by any New Debt Commitment Letter at the time in question does fund Parent and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, ParentMerger Sub’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Constant Contact, Inc.), Merger Agreement (Endurance International Group Holdings, Inc.)
Financing. (a) Subject to the terms satisfaction of the condition set forth in Sections 4.01 and conditions of this Agreement4.02, Parent 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, advisable or proper to arrange and obtain provide Sub with the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof equity financing contemplated by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacementLetters.
(b) Parent and Sub shall, and shall cause its Affiliates their respective officers, directors, employees, affiliates, financial advisors and Representatives other representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, arrange as promptly as practicable and cause (subject only to the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail simultaneous consummation of the status transactions contemplated hereby) to complete the financing contemplated by (i) the Credit Facility (as defined in the Commitment Letters) on the terms set forth in the Commitment Letters and, to the extent not set forth in the Commitment Letters, on such terms as are reasonably satisfactory to Parent and (ii) the issuance and sale of its $150 million principal amount of senior subordinated notes on the terms set forth in the Commitment Letters and, to the extent not set forth in the Commitment Letters, on such terms as are reasonably satisfactory to Parent; provided, that if the issuance and sale of such senior subordinated notes is not completed by the later of (A) the date of the Stockholders' Meeting and (B) 90 days after the date hereof, then thereafter Parent and Sub shall be obligated to use their reasonable best efforts to arrange consummate as promptly as practicable prior to the Debt FinancingOutside Date, the financing pursuant to the Bridge Loan Facility (as defined in the Commitment Letters) on the terms set forth in the Commitment Letters and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreementsextent not set forth in the Commitment Letters, on terms reasonably satisfactory to Parent.
(c) Without limiting Except to the foregoingextent the Company shall otherwise consent in writing, Parent agrees to notify the Company promptly, and Sub will not modify or amend in any event within two (2) Business Days, 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 breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on material respect the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available cancel or waive any material right under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectLetters.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Cpi Corp), Merger Agreement (Essman Alyn V)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant Financing Letter, after giving effect to the market flex terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Fee Letter, and shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made toto (other than to amend the Financing Letter to add lenders, lead arrangers, book runners, syndication agents or similar entities who had not executed the Financing Letter as of the date of this Agreement), or any waiver of any provision or remedy under, the Debt Commitment Financing Letter or the Fee Letter, if such amendment, supplement, replacement, modification or waiver (Ai) reduces the aggregate amount of the cash proceeds from the Debt Financing or (Bii) imposes new or additional conditions to the initial funding or other terms or otherwise expands expands, amends or modifies any of the conditions to the receipt of the Debt Financing, Financing or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter terms in a manner that would reasonably be expected to (x) delay or prevent the Closing (y) make the timely funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, Financing less likely to occur or (yz) adversely affect impact the ability of Parent Buyer to enforce its rights against the other parties to the Debt Commitment Financing Letter or the definitive agreements with respect thereto (thereto; provided that Buyer shall have the right to substitute other financing for all or any portion of the Financing from the same and/or alternative financing sources; provided, further, that Parent may amend such substitution shall only be permitted if (i) the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action terms thereof would not be reasonably expected to delay or prevent the Closing or make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur and (ii) the conditions to the Financing set forth in the Financing Letter would not be expanded or modified in a manner that would reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of provided, still further, that any such amendmentsubstitute financing shall not obligate any of Seller or its Affiliates as a surety, modification guarantor or replacementindemnitor or to extend credit to any Person. Any reference in this Agreement to (A) “Financing,” shall include the financing contemplated by the Financing Letter as amended or modified in compliance with this Section 6.9(a) and (B) “Financing Letter,” and “Fee Letter” shall include such documents as amended or modified in compliance with this Section 6.9(a).
(b) Parent shall, and Buyer shall cause its Affiliates and Representatives to, use its reasonable best efforts (Ai) to maintain in effect the Debt Commitment Financing Letter (provided that in accordance with the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)terms and subject to the conditions thereof, (Bii) to negotiate and enter into all definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Financing Letter, including the market flex provisions in the Fee Letter, and (Ciii) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to such definitive agreements and consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent Buyer shall keep the Company informed on a current basis and in reasonable detail Seller reasonably apprised of the status of its efforts the Financing and developments with respect thereto (including giving Seller prompt notice of any material change with respect to arrange the Debt such Financing, and, promptly following request by the Company, ) and shall provide to the Company Seller copies of all executed Debt Financing Agreements.
(c) material definitive documents related to the Financing. Without limiting the generality of the foregoing, Parent Buyer agrees to notify the Company Seller promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (ix) the Debt Commitment Financing Letter is shall expire or be terminated for any reason, (iiy) Parent becomes aware any of any breach or default (A) by any Financing Source party the other parties to the Debt Commitment Financing Letter or any Debt Financing Agreement or (B) any other notify Buyer that such party no longer intends to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter provide financing on the terms set forth therein. Parent therein or (z) to Buyer’s knowledge (without a requirement of due inquiry), any of the other parties to the Financing Letter is or is alleged to be in breach or default thereunder.
(c) To the extent necessary to complete the transactions contemplated hereby, Buyer shall promptly provide any information reasonably requested use its reasonable best efforts to cause the parties providing Financing to fund on the Closing Date the Financing required to consummate the transactions contemplated hereby and the other transactions contemplated by the Company relating Financing Letter, including by taking enforcement action, if all conditions in the Financing Letter and all conditions to any circumstances referred to Closing contained in this Section 6.13(c). Parent shall notAgreement are satisfied or waived, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably upon funding will be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financingsatisfied.
(d) Parent If the Financing Letter shall have be terminated or modified in a manner materially adverse to Buyer, if the right to substitute Financing Letter shall be materially breached or repudiated by the net cash proceeds received by Parent after the date hereof and prior other parties to the Closing from consummated offerings Financing Letter, or other incurrences of debt (including notes) by Parent for all or if any portion of the Debt Financing by reducing commitments under becomes unavailable on the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash terms and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions conditions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment LetterFinancing Letter (other than as a result of obtaining substitute debt financing in accordance with Section 6.9(a)) (such event, to supplement or replace the Debt an “Original Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment LetterFailure”), together with all related fee letters Buyer shall use its reasonable best efforts to arrange promptly to obtain alternative financing from alternative sources on terms and associated engagement letters (solely conditions not less favorable to Buyer than those contained in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.Fee Letter and in an amount at least
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Laclede Group Inc), Purchase and Sale Agreement (Laclede Gas Co)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent 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 consummate, on or proper prior to arrange and obtain the Closing Date, the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein (subject to any “flex” provisions applicable thereto), including by (i) maintaining in effect the Debt Commitment Letter, (ii) negotiating and entering into definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) consistent with the terms and conditions described contained therein (including, as necessary, the “flex” provisions contained in any related fee letter) and (iii) satisfying on a timely basis, or obtaining waivers of, the conditions in the Debt Commitment Letter pursuant to and the terms thereof (including any “market flex” provisions) including using Definitive Agreements. Parent shall comply with its reasonable best efforts to seek to enforce its rights obligations under the Debt Commitment Letter and Definitive Agreements in the event of a breach thereof by the financing provider(s) thereundertimely and diligent manner. Parent shall notkeep the Company reasonably informed of material developments in respect of Parent’s efforts to arrange the Debt Financing. Prior to the Closing, without the Company’s prior written consentconsent of the Company, permit Parent shall not (A) agree to, or permit, any amendment, supplement, replacement modification or modification to be made tosupplement of, or any waiver of any provision under, the Debt Commitment Letter if or any Definitive Agreement to the extent such amendment, supplementmodification, replacement, modification supplement or waiver would (Ai) reduces reduce the aggregate amount to be funded under the Debt Financing (including by changing the amount of the cash proceeds from fees to be paid or original issue discount of the Debt Financing or similar fees unless the aggregate amount to be funded under the Debt Financing is increased by an equivalent amount) unless Parent has sufficient cash on hand available), (Bii) imposes adds new (or additional adversely modifies any existing) any conditions to the initial funding consummation of all or otherwise expands any of the conditions to the receipt portion 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (yiii) adversely affect affects the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto Definitive Agreements as so amended, replaced, supplemented or otherwise modified, relative to the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter as in effect on the date hereof; or (providediv) could otherwise reasonably be expected to prevent, that impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement or (B) terminate any Debt Commitment Letter or any Definitive Agreement. Parent shall promptly deliver to the Company copies of any such amendment, modification or waiver of any Debt Commitment Letter. Notwithstanding the foregoing, (x) Parent may amend the Debt Commitment Letter solely to add or replace investors, lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letter as of the date hereof and, in connection therewith, amend the allocation of economics with respect to the existing and additional investors, lenders, lead arrangers, bookrunners, syndication agents or similar entities, if the addition of such additional parties and amendment of additional terms do not impact the aggregate amount of the Debt Financing to be funded at the Closing and (y) in the event that Parent is required pursuant to this Section 7.11 to provide any information that is subject to attorney-client or similar privilege, Parent may withhold disclosure of such information so long as Parent gives notice to the Company of the fact that it is withholding such action information and thereafter Parent shall use its reasonable best efforts to cause such information to be provided in a manner that would not reasonably be expected to delay waive the applicable privilege or prevent protection.
(b) In the Closing)event any portion of the Debt Financing becomes unavailable on the terms and conditions (including any “flex” provisions applicable thereto) contemplated in the Debt Commitment Letter and such portion is necessary to fund the transactions contemplated by this Agreement, Parent shall promptly notify the Company 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 to obtain alternative debt financing from alternative sources for such portion in an amount equal to the amount of the Debt Financing. If obtained, Parent shall promptly deliver to the Company true, true and complete and correct copies of a new debt financing commitment pursuant to which any such amendment, modification or replacement.
(b) Parent shall, and alternative source shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing committed to provide the Debt Financing to comply Parent with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference References in this Agreement to (i) the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as amended, modified pursuant to clause (ii) belowor replaced, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectsuch documents as amended, modified or replaced and (iii) any reference in this Agreement to “fee letterDebt Financing Sources” shall be deemed include the providers of debt financing under such documents as amended, modified or replaced (in the case of each of clauses (i), (ii) and (iii), including replacement with alternative financing and alternative debt financing commitments pursuant to include any this Section 7.11 from and after such amendment, modification or replacement); provided, that fee letter relating to letters or side letters which do not contain “flex” or other provisions which affect the terms or amount, availability or conditions of the Debt Commitment Letter that is Financing shall not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds be required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii)be provided.
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Virtu Financial, Inc.), Merger Agreement (Investment Technology Group, Inc.)
Financing. (a) Subject to the terms Parent and conditions of this Agreement, Parent Merger Sub shall use its their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Credit Agreement Financing on the terms and conditions described in (including the Debt Commitment Letter pursuant “flex” provisions applicable to the terms thereof (including any “market flex” provisionsCredit Agreement) of the Credit Agreement, including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s(i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, Merger as promptly as reasonably possible) all conditions and covenants applicable to receipt of the full amount of the Debt 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 Parent and Merger Sub in the Debt Commitment LetterCredit Agreement, to (ii) consummate the Debt Credit Agreement Financing at or prior to the ClosingClosing (subject to termination, replacement or reduction as contemplated in this Section 7.14), (Diii) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter Credit Agreement with respect thereto and definitive financing agreements and to fund on or before (iv) unless the Effective Time commitments under the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is Credit Agreement are terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to as provided below in this Section 6.13(c7.14(a), maintain in effect the Credit Agreement until the Transactions are consummated (or until this Agreement otherwise terminates). Parent and Merger Sub shall not, nor shall it permit not agree to any of its Affiliates amendments or modifications to, or grant any waivers of, any condition or other provision under the Credit Agreement without the prior written consent of the CompanyCompany (which consent shall not be unreasonably withheld, take conditioned or delayed) that (I) would impose new or additional conditions, or otherwise expand, amend or modify any action or enter into any transaction of the conditions to the receipt of the Credit Agreement Financing to fund the Transactions in a manner that would reasonably be expected to materially impair, delay or prevent make the consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Credit Agreement Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letterless likely, (wII) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available would reasonably be expected to Parent, is sufficient adversely affect Parent or Merger Sub’s ability to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement and all conditions precedent to or (III) would delay the timing of the funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness commitments under the Company Credit Agreement in full in accordance with the Company Credit Agreement; provided, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding that, notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are (1) Parent may amend the Credit Agreement solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not subject executed the Credit Agreement as of the date hereof; provided that, where consent of Parent is required, such amendment would not reasonably be expected to a condition regarding Parent’s materially delay the availability of the Financing or in any material respect, the ability or likelihood of its Affiliates’ obtaining funds Parent or Merger Sub to consummate the Transactions, in each case, determined as of the date of such amendment, and (2) Parent and Merck Financial Services GmbH shall have the right to reduce the commitments under the Credit Agreement by an amount not to exceed the aggregate amount of (x) the aggregate amount of any net cash proceeds received by Parent and/or its Subsidiaries after the date hereof from Financings and/or dispositions consummated after the date hereof so long as (A) an amount equal to any such reduction in commitments is retained by Parent and/or its Subsidiaries in the form of Retained Current Financial Assets, and (B) to the extent any of such proceeds are from securities or Indebtedness that has a scheduled redemption or mandatory redemption or put right (other than customary 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 Termination Date or (y) other Retained Current Financial Assets of Parent and/or its Subsidiaries; provided, that, in the case of clause (x) or (y), such Retained Current Financial Assets may be replaced by increased commitments under the Credit Agreement or any commitments under any New Financing (which shall not expand in any respect upon the conditions precedent or contingencies to the funding on the closing date of the Credit Agreement Financing as set forth in the Credit Agreement in effect on the date hereof in a manner that would reasonably be expected to make the consummation of such New Financing less likely than consummation of the Credit Agreement Financing or otherwise adversely affect the ability or likelihood of Parent or Merger and Sub to timely consummate the transactions contemplated by this Agreement); provided, further, that it is agreed that Parent may terminate the commitments of a defaulting lender under the Credit Agreement to the extent such commitment has been replaced, or will be replaced substantially contemporaneously with such termination, by a commitment at least equal to the terminated commitment. For purposes of this Agreement, “Retained Current Financial Assets” are Current Financial Assets of Parent and/or its Subsidiaries (x) that are identified by Parent for the purpose of funding the Transactions (it being understood and agreed that any such Current Financial Assets may at any time and from time to time be substituted for with other Current Financial Assets that would satisfy at the time of such substitution the requirements of this definition of “Retained Current Financial Assets”), (y) as to which there are no conditions or restrictions on Parent’s ability to use such Current Financial Assets 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 Current Financial Asset to Parent) and (z) to the extent any of such Retained Current Financial Assets were generated from securities or Indebtedness that has a scheduled redemption or mandatory redemption or put right (other than customary 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 Termination Date.
(b) If any portion of the Credit Agreement Financing expires or otherwise becomes unavailable on the terms and conditions (including any “flex” provisions applicable thereto) contemplated in the Credit Agreement (other than as contemplated by Section 7.14(a)),
Appears in 1 contract
Financing. (a) Subject to the terms Buyer and conditions of this Agreement, Parent 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, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees agree to notify the Company promptlySeller immediately if, and in any event within two (2) Business Days, if at any time prior to the Closing Date Date, (i) the Debt Financing Commitment Letter is shall expire or be terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source financing source that is a party to the Debt Financing Commitment Letter notifies Buyer or any Debt Financing Agreement Parent that such source no longer intends to provide financing to Buyer or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter Parent on the terms set forth therein, or (iii) for any reason Buyer or Parent no longer believe in good faith that it will be able to obtain any of the financing substantially on the terms described in the Financing Commitment. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Buyer and Parent shall not, nor and shall it not permit any of its Subsidiaries or Affiliates to, without the prior written consent of the CompanySeller, take any action or enter into any transaction transaction, including, without limitation, any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing that would could reasonably be expected to materially impair, delay or prevent Buyer’s or Parent’s obtaining of the financing contemplated by the Financing Commitment. Neither Buyer nor Parent shall amend or alter, or agree to amend or alter, the Financing Commitment in any manner that would impair, delay or prevent the consummation of the transactions contemplated hereby without the prior written consent of Seller.
(b) If the Financing Commitment shall be terminated or modified in a manner adverse to Buyer or Parent for any reason, Buyer and Parent shall use their reasonable best efforts to obtain, and will provide Seller with a copy of, a new financing commitment that provides for at least the same amount of financing as the Financing Commitment as originally issued, funding conditions no less favorable than those included in the Financing Commitment as originally issued, a termination date not earlier than the termination date included in the Financing Commitment as originally issued, and other terms and conditions the aggregate effect of which is not materially adverse to the ability of Buyer or Parent to consummate the transactions contemplated hereby in comparison with those terms and conditions contained in the Financing Commitment as originally issued. Buyer and Parent shall accept any such new commitment letter if the funding conditions and other terms and conditions contained therein, in the aggregate, are not materially adverse to Buyer and Parent in comparison with those contained in the Financing Commitment as originally issued.
(c) Buyer and Parent shall use their reasonable best efforts to cause Seller to be named as a third party beneficiary of all or any portion of the Debt FinancingFinancing Commitments.
(d) Parent and Buyer shall have the right to substitute the net cash proceeds received by provide Seller any certificates from Parent after the date hereof or Buyer, and prior any opinions, appraisals or other statements, relating to the Closing from consummated offerings solvency and adequate capitalization of Parent and Buyer and Parent’s and Buyer’s ability to pay its debts that are given to any banks or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid lenders in connection with the transactions contemplated by this AgreementFinancing. Any such certificate, (x) the proceeds of such debt offerings opinion, appraisal or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto statement will be promptly provided to Seller at the Company. If commitments under the Debt Commitment Letter have been reduced time it is provided to zero in connection with the preceding sentence, the any banks or other lenders or promptly thereafter.
(e) It is expressly understood and agreed that Parent’s and Buyers obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement on the terms and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder specified herein are not subject to a financing condition regarding or contingent upon the results of Parent’s or any and Buyer’s efforts to obtain the full amount of the Financing required to effect the Closing pursuant to, and to satisfy its Affiliates’ obtaining funds obligations under, Article II hereof, including paying Seller the Cash Purchase Price pursuant to consummate the Merger and the transactions contemplated by this AgreementSection 1.3 hereof.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Buyer shall use commercially reasonable efforts to, and shall cause its Financing Affiliates to use commercially reasonable best efforts to, take all actions and to take, do or cause to be taken, all actions and to do, or cause to be done, done all things necessary, proper or advisable or proper to arrange and obtain the proceeds of the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to (provided, that the terms thereof Financing Affiliates may (including any “market flex” provisionsi) including using its reasonable best efforts to seek to enforce its rights under amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as of the date of this Agreement so long as the addition of such additional parties would not reasonably be expected to materially delay or prevent the Closing or (ii) otherwise replace or amend the Debt Commitment Letter so long as such action would not reasonably be expected to delay or prevent the Closing and the terms are not materially less beneficial to Buyer, with respect to conditionality, than those in the event Debt Commitment Letter as in effect on the date of a breach thereof by the financing provider(s) thereunderthis Agreement). Parent Buyer shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter without the prior written consent of Sellers if such amendment, supplement, replacement, modification or waiver waiver:
(Ai) reduces the aggregate amount of the cash proceeds from Debt Financing (including by increasing the amount of fees to be paid or original issue discount as compared to such fees and original issue discount contemplated by the Debt Commitment Letter and related fee letters in effect on the date hereof unless the Debt Financing or is increased by such amount) to an amount which, together with available equity, is less than required for Buyer to be able to consummate the Closing on the Closing Date;
(Bii) (A) imposes new or additional conditions to the initial funding or (B) otherwise expands adversely expands, amends or modifies any of the conditions precedent to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter Letter, in the case of clause (B), in a manner that would reasonably be expected to (x) prevent or materially delay or prevent the funding in full ability of Buyer to consummate the Debt Financing (or satisfaction of the conditions to the Debt Financing) Closing on the Closing Date, or ; or
(yiii) would otherwise materially adversely affect impact the ability of Parent Buyer to enforce its rights against other parties to the Debt Commitment Letter or otherwise to timely consummate 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 delay or prevent the Closing)transactions contemplated by this Agreement. Parent Buyer shall promptly deliver to the Company true, complete and correct Seller copies of any such amendment, modification modification, waiver or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability . For purposes of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification references to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing,” shall include the debt financing contemplated by the Debt Commitment Letter as permitted to be amended, modified pursuant or replaced by this Section 4.7(a) or 4.7(c) and references to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall include such documents as permitted to be deemed to include the Debt Commitment Letter which is not superseded amended, modified or replaced by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iiithis Section 4.7(a) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iiior 4.7(c).
(fb) Notwithstanding anything to Buyer shall use commercially reasonable efforts to: (i) maintain in effect the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.Debt Commitment Letter;
Appears in 1 contract
Sources: Purchase and Sale Agreement
Financing. (a) Subject to the terms Parent and conditions of this Agreement, Parent Merger Sub shall use its their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Letter, including using its reasonable best efforts to seek (i) maintain in effect, and comply with, the Financing Commitments in accordance with their terms without amendment, alteration or waiver other than as permitted in this Section 5.14(a), (ii) satisfy on a timely basis all conditions applicable to enforce its rights under Parent and Merger Sub to obtaining the Financing, (iii) enter into definitive agreements with respect thereto on terms and conditions contained in the Debt Commitment Letter in (including any “flex” provisions) (or other terms that would not adversely impact the event ability of a breach thereof by Parent or Merger Sub to timely consummate the financing provider(stransactions contemplated hereby) thereunderand (iv) consummate the Financing at or prior to the Closing. Parent shall not, and shall not permit Merger Sub to, agree to or permit any amendment, supplement or other modification of, or waive any of its rights under, any Financing Commitment or any definitive agreements related to the Financing, in each case, without the Company’s prior written consent (which consent may be withheld in its sole and absolute discretion); provided, however, that Parent and Merger Sub may (without obtaining the Company’s consent) amend, permit any amendment, supplement, replacement supplement or modification to be made to, or any waiver of any provision under, modify the Debt Commitment Letter if such amendment, supplement, replacement, supplement or modification or waiver (AI) reduces does not reduce the aggregate principal amount of the cash proceeds from the Debt Financing or Financing, (BII) imposes does not impose new or additional conditions to the initial funding conditions, or otherwise expands expand or modify any of the conditions existing conditions, to the receipt consummation of the Debt Financing, (III) is not reasonably expected to hinder, delay or otherwise expandsprevent the Closing, amends or modifies any other provision of the Debt Commitment Letter in a manner that would (IV) could not reasonably be expected to (x) delay or prevent make the funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, less likely to occur in any respect or (yV) could not reasonably be expected to adversely affect impact the ability of Parent or Merger Sub to enforce or cause the enforcement of its rights against other parties to under any of the Debt Commitment Letter or the definitive agreements with respect relating thereto (providedand, that for the avoidance of doubt, Parent may amend and Merger Sub shall be permitted to amend, supplement or modify the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long that have not executed the Debt Commitment Letter as of the date hereof, if the addition of such action parties, individually or in the aggregate would not reasonably be expected to prevent, delay or prevent impair the Closingavailability of the Debt Financing under the Debt Commitment Letter or the consummation of the transactions contemplated by this Agreement). Parent shall promptly deliver to the Company true, complete and correct copies of Upon any such amendment, supplement or modification of the Debt Commitment Letter in accordance with this Section 5.14(a), Parent shall provide a copy thereof to the Company and references to “Financing Commitments” and “Debt Commitment Letter” shall include such documents as Table of Contents permitted to be amended, supplemented or replacementmodified under this Section 5.14(a) and references to “Financing” and “Debt Financing” shall include the financing contemplated by the Debt Commitment Letter as permitted to be amended, supplemented or modified under this Section 5.14(a).
(b) In the event all or any portion of the Financing becomes unavailable on the terms and conditions or from the sources contemplated by the Financing Commitments for any reason, (i) Parent shall, shall promptly notify the Company and (ii) Parent and Merger Sub shall cause its Affiliates and Representatives to, use its their reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amendedarrange and obtain, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) and to negotiate and enter into definitive agreements with respect to, alternative financing from alternative sources (the “Alternative Financing”) in an amount sufficient to consummate the transactions contemplated by this Agreement as promptly as practicable following the Closing and satisfy the Closing Amounts, including the Refinancing Amounts; provided that any such Alternative Financing shall not (A) be on economic terms that are less favorable in the aggregate to Parent, Merger Sub and the Company than the Financing contemplated by the Debt Commitment Letter Letters (including the “market flex” provision set forth in the fee letter provided with the Debt Financing Agreements”Commitment Letters) on the terms and or (B) impose any additional conditions to funding that are not materially less favorable contained in the Financing Commitments which would reasonably be expected to adversely affect the ability or likelihood of Parent or Merger Sub to timely consummate the transactions contemplated by this Agreement. In the event any Alternative Financing is contemplated in accordance with this Section 5.14(b), references to “Debt Financing,” “Equity Financing,” “Financing,” “Debt Commitment Letter,” “Equity Commitment Letter” and “Financing Commitments” shall include such Alternative Financing, as applicable. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require, and in no event shall the reasonable best efforts of Parent or Merger Sub be deemed or construed to require, Parent or Merger Sub to (x) seek the Equity Financing from any source other than those contained counterparty to, or in any amount in excess of that contemplated by, the Equity Commitment Letter or (y) pay any fees in excess of those contemplated by the Debt Commitment Letter.
(c) Upon request from the Company, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company reasonably informed on a current basis and in reasonable detail of the status of its efforts to arrange consummate the Financing. Without limiting the generality of the foregoing, Parent and Merger Sub shall give the Company prompt written notice (i) of any actual, threatened or alleged breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any breach or default) by any party to any Financing Commitment of which Parent becomes aware, (ii) of the receipt of any notice or other communication from any person with respect to any actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing or (iii) of any material adverse change with respect to the Debt Financing or Equity Financing which Parent or Merger Sub is actually aware and believes in good faith would reasonably be expected to materially delay or prevent the Closing or materially and adversely affect the availability of the Financing on the Closing Date.
(d) Prior to the Closing, the Company shall use reasonable best efforts to provide to Parent and Merger Sub, at Parent’s sole expense, all reasonable cooperation requested by Parent that is reasonable and customary in connection with the Financing, including the following: (i) furnishing Parent and Merger Sub and their Financing Sources with the financial or Table of Contents other reasonably pertinent information regarding the Company and its subsidiaries as expressly required by paragraph 7 of Exhibit C of the Debt Commitment Letter and or the definitive agreements with respect to the Debt Financing or as may otherwise be reasonably requested by Parent to consummate the Debt Financing, and, promptly following request by the Company, provide to including customary financial information of the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoingand its Subsidiaries sufficient to permit Parent to prepare and provided financial statements, Parent agrees pro forma financial information, financial data, audit reports and other financial information and any other financial statements and financial data expressly required as conditions to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) funding under the Debt Commitment Letter is terminated for any reasonreasonably promptly upon such information becoming available and Parent’s request therefor, (ii) upon reasonable notice, participation in a reasonable number of meetings, presentations and due diligence sessions, (iii) assisting with the preparation of definitive financing documents required in connection with the Financing, as may be reasonably requested by Parent, (iv) obtaining legal opinions, surveys and title insurance reasonably requested by Parent becomes aware of any breach or default and customary for financings similar to the Financing, (Av) by any Financing Source party executing and delivering, and causing its subsidiaries to execute and deliver customary certificates (including a solvency certificate in the form attached to the Debt Commitment Letter or any Debt Financing Agreement or delivered by the chief financial officer of the Company) and (Bvi) any facilitating the entrance into other party documents and instruments relating to guarantees, the pledge of collateral and other matters ancillary to the Debt Commitment Letter or any Debt Financing Agreement if, as may be reasonably requested by Parent in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of connection with the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion and otherwise reasonably facilitating the pledge of the Debt Financing collateral and providing of guarantees contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by (provided that the Company relating and its Subsidiaries shall not be required to enter into any circumstances referred such document or instrument that will be effective prior to the Effective Time); provided, however, that, notwithstanding the above, (A) nothing in this Section 6.13(c). Parent 5.14 shall not, nor shall require such cooperation to the extent it permit would interfere unreasonably with the business or operations of the Company or any of its Affiliates toSubsidiaries, without (B) no obligation of the Company or any of its subsidiaries under any certificate, document or instrument shall be effective until the Effective Time and none of the Company or any of its subsidiaries shall be required to take any action under any certificate, document or instrument that is not contingent upon the Closing (including the entry into any agreement that is effective before the Effective Time) or that would be effective prior written consent to the Effective Time, (C) the Company Board nor any board or other governing body of the Company’s Subsidiaries shall be required prior to the Effective Time to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained, (D) no officer who is not remaining in such position following the Closing shall be obligated to execute or deliver any documents in connection with the Financing, (E) none of the Company or any of its Subsidiaries shall be required to bear any cost or expense for which it will not be reimbursed pursuant to this Section 5.14 or to pay any commitment or other similar fee or make any other payment in connection with the Financing or any of the foregoing prior to the Effective Time, (F) none of the Company or any of its subsidiaries shall be required to take any action that would subject it to actual or enter into potential liability under any transaction agreement and related documents unless and until the Closing occurs, (G) none of the Company or any of its subsidiaries shall be required to take any action that will (1) conflict with or violate the Company’s organizational documents or any Laws, (2) cause any condition to the Closing set forth in Article VI to not be satisfied or otherwise cause a breach of this Agreement, (3) result in the contravention of, or that would reasonably be expected to materially impairresult in a violation or breach of, delay or prevent consummation of all a default under, any Contract to which the Company or any portion of its Subsidiaries is a party (other than the Credit Agreement or any Contracts entered into in connection therewith) or (4) result in any officer or director of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences Table of debt (including notes) by Parent for all Contents Company or any portion of its Subsidiaries incurring any material personal liability with respect to any matters relating to the Debt Financing by reducing commitments under and (H) none of the Debt Commitment LetterCompany or any of its Subsidiaries shall be required to provide access to or disclose information where the Company reasonably determines that such access or disclosure would jeopardize the attorney-client privilege of the Company or any of its subsidiaries or contravene any Law or any material contract to which the Company or any of its Subsidiaries is a party; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant will use reasonable best efforts to Section 6.14 shall no longer be provide such information in effecta manner that does not violate such agreement or law or waive such privilege. FurtherNotwithstanding anything to the contrary herein, Parent shall have the right to substitute commitments execution and delivery of any documents in respect of other financings for all or any portion of connection with the Debt Financing shall be deemed to become effective only if and when the Effective Time occurs and shall be derived exclusively from the same and/or alternative financing sources so long authority of Parent as the aggregate amount controlling shareholder and of the Debt FinancingBoard of Directors of the Surviving Company as constituted after giving effect to the Effective Time. Parent shall, together with other cash and cash equivalents available to Parentpromptly upon request by the Company, is sufficient to pay reimburse the Company for all amounts required to be paid reasonable out-of-pocket costs incurred by the Company or its subsidiaries in connection with this Section 5.14(d). Parent shall indemnify and hold harmless the Company, its affiliates and its and their respective Representatives from and against any and all liabilities or losses suffered or incurred by them in connection with the arrangement of the Financing and any information utilized in connection therewith (other than information provided by the Company or its subsidiaries expressly for use in connection therewith).
(e) Each of Parent and Merger Sub acknowledges and agrees that the obtaining of the Financing is not a condition to the Closing, and reaffirms its obligation to consummate the transactions contemplated by this Agreement irrespective and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case independently of the fee letter, with only availability of the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent 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, advisable or proper to arrange and obtain the Debt proceeds of the Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, provided that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities or otherwise amend the Commitment Letter so long as such action would not reasonably be expected to delay or prevent the Closing). Closing and the terms are not less beneficial to Parent shall promptly deliver to or the Company truewith respect to conditionality or amount of funding on the Closing than those in the Commitment Letter as in effect on the date of this Agreement), complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use including using its reasonable best efforts to (Ai) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)Letter, (Bii) satisfy on a timely basis all conditions applicable to negotiate and funding of the Financing, (iii) enter into definitive agreements with respect thereto and (iv) comply with its obligations, and enforcing its rights, under the Commitment Letter. Parent shall provide the Company prompt written notice of any material breach by any party to the Debt Commitment Letter (or commitments for any alternative financing obtained in accordance with this Section 6.5) of which Parent becomes aware or any termination of the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis Letter (or obtain the waiver ofcommitments for any alternative financing obtained in accordance with this Section 6.5). Parent shall, and in a manner that will not impede the ability upon request of the parties Company from time to consummate the Mergertime, all conditions to receipt of the full amount of the Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep inform the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by Financing (or alternative financing obtained in accordance with this Section 6.5). In the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) that Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing is unavailable in the manner or from the sources contemplated by in the Debt Commitment Letter on the terms set forth thereinLetter, Parent will use its reasonable best efforts to obtain alternative financing for such portion from alternative sources. Parent shall promptly provide not agree to nor permit any information reasonably requested by amendment, modification or waiver (other than a waiver of a condition to the Financing) of the Commitment Letter, any other agreement, arrangement or understanding relating to the Financing or the definitive agreements relating to the Financing that is materially adverse to Parent or the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the Company’s prior written consent of (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the Companyforegoing, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received compliance by Parent after the date hereof and prior with this Section 6.5 shall not relieve Parent of its obligation to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement, whether or not the Financing is available.
(xb) the proceeds The Company shall, and shall cause each of such debt offerings or other incurrences have been received by Parent in cashits Subsidiaries to, use its reasonable best efforts to provide, at Parent’s sole cost and expense, (yand cause its Representatives to provide) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero reasonable cooperation in connection with the preceding sentence, arrangement and syndication of the obligations Financing as may be reasonably requested by Parent (provided that such cooperation does not unreasonably interfere with the operations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effectSubsidiaries). Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid Such reasonable cooperation in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing areFinancing shall include, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtainedwithout limitation, (i) any reference participating in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with prospective lenders, investors and rating agencies; (ii) belowassisting with the preparation of materials for rating agency presentations, (ii) any reference bank information memoranda and similar documents required in this Agreement to connection with the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time Financing, including execution and delivery of customary representation letters in question and each New Debt Commitment Letter to the extent then in effect, and connection with bank information memoranda; (iii) any reference in this Agreement providing reasonable and timely assistance with the preparation of business projections, pro forma financial information and similar information and materials; (iv) furnishing Parent and its financing sources with (A) the audited consolidated financial statements of the Company for the fiscal year ended December 31, 2009, and the notes and schedules thereto, no later than 60 days prior to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, (B) the unaudited consolidated financial statements of the Company for any subsequent quarterly period ended no less than 45 days prior to the Closing Date, and the unaudited consolidated financial statements for the same period of the prior fiscal year, no later than 45 days after the end of the relevant fiscal quarter and (C) all financial information related to the Company reasonably requested by Parent shall provide all funds and reasonably necessary for Parent to produce the pro forma financial statements required to be delivered pursuant to the Commitment Letter or any alternative financing; (v) using commercially reasonable efforts to effect the repayment timely delivery of all indebtedness drafts of customary comfort (including “negative assurance” comfort) letters by the auditor of the Company which such auditor is prepared to issue upon completion of customary procedures; (vi) using commercially reasonable efforts to assist Parent to obtain customary legal opinions, appraisals, surveys, title insurance and other documentation and items relating to real estate collateral under the Financing as reasonably requested by Parent and, if requested by Parent, to cooperate with and assist Parent in obtaining such documentation and items; (vii) providing reasonable and customary management and legal representations to auditors; (viii) executing and delivering, as of the Effective Time, any pledge and security documents, other definitive financing documents, or other certificates, legal opinions or documents, as may be reasonably requested by Parent (including consents of accountants for use of their reports in any materials relating to the Financing) and otherwise reasonably facilitating the pledging of collateral; and (ix) not commencing or effecting any offering, placement or arrangement of any debt securities or bank financing (or permitting any such offering, placement or arrangement by the Company Credit Agreement to occur on its behalf); provided that (i) the Company shall not be required to pay any commitment or other similar fee or enter into any definitive agreement or incur any other liability or other obligation in full in accordance connection with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything Financing prior to the contrary contained herein, Parent’s obligations hereunder are not subject to Closing and (ii) no Person that is a condition regarding Parent’s director of the Company or any of its Affiliates’ obtaining funds Subsidiaries shall be required to consummate take any action in such capacity with respect to the Merger Financing (or any alternative financing) prior to the Closing; provided, further, that the Company shall cooperate with Parent, if requested by Parent, to appoint Parent’s designees to the Board of Directors or similar governing bodies of the Subsidiaries of the Company, as of the Closing Date, for the purpose of taking corporate action related to the Financing as of the Closing. Without limiting the foregoing, the Company shall provide to Parent all reasonably available information relating to the Company reasonably requested by Parent and reasonably necessary for the preparation of (A) a customary confidential offering memorandum with respect to the syndication of the credit facilities contemplated by the Commitment Letter, and (B) a complete customary preliminary offering memorandum relating to the issuance of the securities contemplated by the Commitment Letter. Parent shall indemnify and hold harmless the Company, its Subsidiaries and Representatives from and against any and all losses, costs, damages, liabilities and expenses incurred by any of them in connection with the arrangement of the Financing (or any alternative financing) and the transactions contemplated utilization of any information in connection therewith and all other actions taken by the Company, its Subsidiaries and their Representatives pursuant to this AgreementSection 6.5(b). Parent shall, from time to time, reimburse the Company for any and all reasonable out-of-pocket expense incurred by the Company and its Subsidiaries in connection with its compliance with this Section 6.5(b), promptly upon receipt of the Company’s written request therefor.
Appears in 1 contract
Sources: Merger Agreement (Triumph Group Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent The Forsyth Parties shall use its their commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain consummate the Debt Financing on no later than the terms and conditions described Closing. In the event that any portion of the Financing becomes unavailable in the Debt Commitment Letter pursuant to manner or from the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter source contemplated in the event of a breach thereof by the financing provider(s) thereunder. Parent shall notEquity Commitment Letter, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of Forsyth Parties shall immediately notify the cash proceeds from the Debt Financing or Company and (B) imposes new or additional conditions the Forsyth Parties shall use their commercially reasonable efforts to arrange to obtain any such portion from alternative sources, on terms that are no more adverse to the initial funding or otherwise expands any Company, as promptly as practicable following the occurrence of the conditions to the receipt of the Debt Financingsuch event, 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the including entering into definitive agreements with respect thereto (provided, that Parent may amend such definitive agreements entered into pursuant to the Debt Commitment Letter first or second sentence of this Section 5.10(a) being referred to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing“Financing Agreements”). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent The Forsyth Parties shall, and shall cause its their Affiliates and Representatives to, use its their commercially reasonable best efforts (A) to maintain in effect cause their representatives to, comply with the Debt Commitment Letter (provided that the Debt Commitment Letter may be amendedterms, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of)conditions, and 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 Debt 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 Equity Commitment Letter, to consummate any alternative financing commitments, the Debt Financing at or prior to Agreements and any related fee and engagement letters. Any breach of the Closing, (D) to comply with its obligations under the Debt Equity Commitment Letter, the Financing Agreements, any alternative financing commitment and any related fee and engagement letter by the Forsyth Parties shall be deemed a breach by the Forsyth Parties of this Section 5.10(a). The Forsyth Parties shall (x) furnish complete, correct and executed copies of the Financing Agreements promptly upon their execution, (y) give the Company prompt notice of any breach by any party of any of the Equity Commitment Letter, any alternative financing commitment, any related fee and engagement letter, or the Financing Agreements or any termination thereof and (Ez) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall otherwise keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements(or any replacement thereof).
(cb) Without limiting the foregoing, Parent agrees to notify the The Company promptlyshall, and in any event within two (2) Business Days, 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 breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of cause its Affiliates Subsidiaries to, without the prior written consent of the Companyat Buyer’s sole expense, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid cooperate in connection with the transactions contemplated arrangement of the Financing as may be reasonably requested by this Agreement, Buyer (x) the proceeds of provided that such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection requested cooperation does not unreasonably interfere with the preceding sentence, the obligations ongoing operations of the Company and its Subsidiaries Subsidiaries). Such cooperation by the Company shall include, at the reasonable request of Buyer, (i) agreeing to enter into such agreements, and to use commercially reasonable efforts to deliver such officer’s certificates, as are customary in financings of such type and as are, in the good faith determination of the Persons executing such officer’s certificates, accurate, and agreeing to pledge, grant security interests in, and otherwise grant liens on, the Company’s assets pursuant to Section 6.14 shall such agreements as may be reasonably requested, provided that no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion obligation of the Debt Financing from Company under any such agreement, pledge or grant shall be effective until the same and/or alternative Effective Time and (ii) providing to BW or other financing sources so long as financial and other information in the aggregate amount of Company’s possession with respect to the Debt FinancingMerger, together with other cash and cash equivalents making the Company’s senior officers available to Parent, is sufficient to pay all amounts required to be paid assist the financing sources and otherwise reasonably cooperating in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case consummation of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the CompanyFinancing. In the event any New Debt Commitment Letter is obtained, (i) any reference Notwithstanding anything in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) belowcontrary, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under neither the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or nor any of its Affiliates’ obtaining funds Subsidiaries shall be required to consummate pay any commitment or other similar fee or incur any other Liability or obligation in connection with the Merger and Financing (or any replacements thereof) prior to the transactions contemplated by this Agreement.Effective Time. The
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Financing. (a) Subject to the terms Parent and conditions of this Agreement, Parent Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, as promptly as practicable after the date hereof, all things necessarynecessary to consummate the Equity Financing and the Debt Financing on or before the Closing Date on the terms and subject only to the conditions described in the Equity Financing Commitment and the Debt Financing Commitment (including any “flex” provisions applicable to the Debt Financing Commitment), advisable including by using reasonable best efforts to (i) comply with, maintain in effect and enforce the Debt Financing Commitment in accordance with the terms and subject to the conditions thereof, including if requested giving effect to any “flex” provisions, in each case until the funding of the Debt Financing at or proper prior to arrange and obtain Closing, and, once entered into, any Financing Agreement with respect thereto, (ii) negotiate Financing Agreements with respect to the Debt Financing on the terms and subject to the conditions described contained in the Debt Financing Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any on other provision of the Debt Commitment Letter in a manner that would terms reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable acceptable to Parent than those contained and not in the Debt Commitment Letter, violation of Section 6.15(b) and (Ciii) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, ) all conditions applicable to receipt of the full amount of the Debt 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 Financing Commitment Letterand any Financing Agreements with respect thereto, in each case, to consummate the Debt Financing extent within the control of Parent. Parent and Merger Sub shall, at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding reasonable request of the Debt Financing will beCompany, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep inform the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing (or any Alternative Financing).
(b) Parent shall not agree to or permit any amendment, supplement or other modification or replacement of, or any termination or reduction of, or grant any waiver of, any condition, remedy or other provision under the Debt Financing Commitment, in each case, without the prior written consent of the Company if (and only if) such amendment, supplement, modification, replacement or waiver would or would reasonably be expected to (i) reduce the net cash proceeds available from the Debt Financing such that Parent would not have, together with the Equity Financing and cash on hand, sufficient cash proceeds to fund the Financing Uses, (ii) impose new or additional conditions or otherwise expand, amend or modify any condition precedent to the receipt of the Debt Financing, andin each case, promptly in a manner that would reasonably be expected to (A) delay or prevent the Closing, or (B) make the timely funding of the Debt Financing or the satisfaction of the conditions to obtaining the Debt Financing materially less likely to occur, or (iii) adversely impact in any material respect the ability of Parent and Merger Sub to enforce its or their rights against the other parties to the Debt Financing Commitment; it being understood that notwithstanding the foregoing, Parent may (1) replace, amend, supplement, or modify or consent to the replacement, amendment, supplement or modification of the Debt Financing Commitment to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitment as of the date of this Agreement, and/or (2) make or permit assignments and replacements of an individual lender under the Debt Financing Commitment in connection with the syndication of the Debt Financing. Promptly following request by any amendment, supplement, modification, replacement or waiver of the CompanyDebt Financing Commitment in accordance with this Section 6.15(b), provide Parent shall deliver a copy thereof to the Company copies of all executed and references herein to the “Debt Commitment Letter,” “Fee Letter,” and/or “Debt Financing AgreementsCommitment” shall be deemed to include such documents as amended, supplemented, modified, replaced or waived in compliance with this Section 6.15(b). For the avoidance of doubt, Parent shall not agree to or permit any (i) termination of the Debt Financing Commitment, other than subsequent to, or simultaneously with, obtaining an Alternative Financing, or (ii) reduction of the Debt Financing Commitment, other than in connection with a reduction in the Merger Consideration; provided, that the net cash proceeds available from the Debt Financing as so reduced, together with the Equity Financing and cash on hand, will be sufficient cash proceeds to fund the Financing Uses.
(c) Without limiting Parent shall not agree to or permit any amendment, supplement or other modification or replacement of, or any termination or reduction of, or grant any waiver of, any condition, remedy or other provision under the foregoingEquity Commitment Letter, in each case, without the prior written consent of the Company if (and only if) such amendment, supplement, modification, replacement or waiver would or would reasonably be expected to (i) reduce the net cash proceeds available from the Equity Financing such that the Parent agrees would not have, together with the Debt Financing and cash on hand, sufficient cash proceeds to fund the Financing Uses, (ii) impose new or additional conditions or otherwise expand, amend or modify any condition precedent to the receipt of the Equity Financing, in each case, in a manner that would reasonably be expected to (A) delay or prevent the Closing, or (B) make the timely funding of the Equity Financing or the satisfaction of the conditions to obtaining the Equity Financing materially less likely to occur, or (iii) adversely impact in any material respect the ability of Parent and Merger Sub to enforce its or their rights against the other parties to the Equity Commitment Letter.
(d) In the event that any portion of the Debt Financing necessary for the Parent and Merger Sub to fund the Financing Uses becomes unavailable on the terms and conditions contemplated by the Debt Financing Commitment (including the flex provisions) (i) Parent shall promptly notify the Company promptlyand (ii) Parent and Merger Sub shall use their reasonable best efforts to (A) arrange and obtain, as promptly as practicable following the occurrence of such event, financing for any such portion from alternative sources (an “Alternative Financing”) on terms that do not impose new or additional conditions precedent or otherwise expand, amend or modify the conditions precedent to funding in a manner, when considered with all other conditions taken as a whole, would reasonably be expected to materially and adversely affect the ability or likelihood of Parent and Merger Sub to consummate the transactions contemplated by this Agreement and (B) provide the Company with a copy of the new Debt Financing Commitment (if applicable) that provides for such Alternative Financing (including all related exhibits, schedules, annexes, supplements and term sheets thereto, and including any related fee letter, which may be redacted to remove references to fee amounts, pricing caps and the economic terms of any flex provisions and other economic terms, provided, that such redactions do not cover terms that could reasonably be expected to affect the conditionality, amount, availability, enforceability or termination of the Alternative Financing). Upon obtaining any commitment for any such Alternative Financing, such financing will be deemed to be a part of the “Debt Financing,” any commitment letter for such Alternative Financing will be deemed the “Debt Commitment Letter” and any fee letter for such Alternative Financing will be deemed to be the “Fee Letter,” in each case, for all purposes of this Agreement, Notwithstanding anything to the contrary contained in this Agreement, in no event shall the Parent or any of its Affiliates be required to pay any fees or any interest rate applicable to the Alternative Financing in excess of those contemplated by the Debt Commitment Letter as in effect on the date hereof (including the flex provisions) or agree to terms (including any flex term) materially less favorable in the aggregate (after giving effect to the flex provisions) to Parent than such term contained in the Debt Commitment Letter as in effect on the date hereof (including the flex provisions).
(e) Parent shall give the Company prompt written notice (but in any event within two (2) Business Days, if at any time prior to the Closing Date ) (i1) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware upon having knowledge of any material breach or material default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement event, fact or (B) any other party to the Debt Commitment Letter circumstance that, with or any Debt Financing Agreement ifwithout notice, in the case lapse of this clause (B)time or both, such breach or default would reasonably be expected to affect the availability of result in material breach or material default) by any party to any Debt Commitment Letter or other definitive agreements related to the Debt Financing or (iiicollectively with the Debt Commitment Letter, the “Debt Documents”), (2) a counterparty indicates if for any reason Parent in writing or orally good faith believes that it is likely that it will not provide, or it refuses be able to provide, obtain all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Commitment Letter on Letter, (3) of the terms set forth therein. receipt by Parent shall promptly provide or Merger Sub or any information reasonably requested by the Company relating of their respective Affiliates or Representatives of any written notice or other written communication from any Person with respect to any circumstances referred actual or threatened material breach, material default, termination or repudiation by any party to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings Commitment Letter or other incurrences Debt Document, and (4) of debt (including notes) by Parent for all any expiration or termination of any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering in no event shall Parent be required to share any information with the Company that Parent reasonably determines is subject to or would otherwise jeopardize any attorney-client or other incurrence legal privilege.
(f) It is acknowledged and agreed by the Parent and Merger Sub that (i) the obligations of debt does Parent and Merger Sub under this Agreement are not result in a breach or default undersubject to any conditions regarding the Parent’s, Merger Sub’s, their Affiliates’, or violation of, any other Person’s ability to obtain financing for the Debt Commitment Letter, (w) the aggregate amount consummation of the Debt Financing committed transactions contemplated hereby and (ii) compliance (or noncompliance) with this Section 6.15 shall not relieve Parent or Merger Sub of any obligations under this Agreement, including the Debt Commitment Letter following such reduction, together with obligation (subject to the other cash and cash equivalents available to Parent, is sufficient terms hereof) to pay all amounts required due pursuant to be paid in connection with Article II on the Closing Date and to consummate the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings whether or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of not the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectavailable.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
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Financing. (a) Subject to the terms and conditions of this Agreement, Parent Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain the Debt Financing on the terms and subject only to the conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Financing Commitments and shall notnot permit, without the Company’s prior written consentconsent of Seller (not to be unreasonably delayed, permit conditioned or withheld), any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision under, or remedy under the Debt Commitment Letter if such amendment, supplement, replacement, modification Financing Commitments (except that Buyer may (x) replace or waiver (A) reduces the aggregate amount of the cash proceeds from amend the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, underwriters, initial purchasers, bookrunners, syndication agents or similar entities so long as such action and (y) enter into any amendment, replacement, supplement or other modification to or waiver of any provision of the Debt Financing Commitment that would not, and would not reasonably be expected to, (A) reduce (or could have the effect of reducing) the aggregate amount of the Debt Financing contemplated by the Debt Financing Commitment, (B) adversely affect the ability of Buyer to delay enforce its rights against any party to the Debt Financing Commitment or prevent the Closingdefinitive agreements with respect thereto, in each case, as so amended, replaced, supplemented or otherwise modified, relative to the ability of Buyer to enforce its rights against the other parties to the Debt Financing Commitment as in effect on the date of this Agreement, (C) prevent, materially delay, impair or impede the consummation of the Debt Financing or the other transactions contemplated by this Agreement or (D) impose new or additional conditions to the availability of the Financing or otherwise expand, amend, supplement or modify any of the conditions to the Financing). Parent Without limiting the generality of the foregoing, Buyer shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts to (Ai) to maintain in effect the Debt Commitment Letter (provided that Financing Commitments until the Debt Commitment Letter may be amended, supplemented, replaced, modified transactions contemplated hereby are consummated or waived as provided this Agreement is terminated in this Section 6.13)accordance with its terms, (Bii) satisfy on a timely basis (or obtain a waiver of) all conditions and covenants applicable to Buyer in the Financing Commitments (including by consummating the financing pursuant to the terms of the Equity Financing Commitment) and otherwise comply (and cause its controlled Affiliates to comply) with its obligations thereunder, (iii) negotiate and enter into definitive agreements with respect thereto on the terms and subject only to the conditions (including, if necessary, the flex provisions) contemplated by the Debt Financing Commitment Letter (the “Definitive Debt Financing Agreements”), (iv) consummate the Financing at or prior to the Closing under the terms and conditions of the Financing Commitments, (v) enforce its rights under the Debt Financing Commitment and the definitive agreements relating to the Debt Financing and (vi) cause the lenders and other Persons providing Financing to fund on the Closing Date the Financing required to consummate the transactions contemplated by this Agreement (assuming in the case of each of clauses (iv), (v) and (vi), that all conditions contained in the Financing Commitments have been satisfied (other than, with respect to the Debt Financing Commitment, the availability of the Equity Financing Commitment). Without limiting the generality of the foregoing, Buyer shall give Seller reasonably prompt written notice of: (A) becoming aware of any 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 Financing Commitment or definitive document related to the Financing; (B) receipt by it (or any Affiliate) of any written notice or other written communication from any Person with respect to any (1) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing or any provisions of the Financing Commitment or any definitive document related to the Financing or (2) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing, solely with respect to the obligation to fund the Financing or the availability of the Financing (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing or any definitive document related to the Financing); (C) such Person’s written indication that it will not fund all or any portion of the Financing at Closing; and (D) if for any reason ▇▇▇▇▇ believes in good faith that there is any Effect that is reasonably likely to have, individually or in the aggregate together with all other Effects, an adverse impact on the Financing contemplated in the Financing Commitments, including a material possibility that Buyer will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing or the Definitive Debt Financing Agreements. As soon as reasonably practicable, but in any event within two (2) Business Days after the date Seller delivers to Buyer a written request, Buyer shall provide any information reasonably requested by Seller relating to any circumstance referred to in clause (A), (B), (C), or (D) of the immediately preceding sentence. If any portion of the Debt Financing becomes unavailable on the terms and conditions that are not materially less favorable to Parent than those contained (including the flex provisions) contemplated in the Debt Commitment LetterFinancing Commitment, (C) Buyer shall use its reasonable best efforts to satisfy on a timely basis (take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the waiver of), and financing from alternative sources in a manner that will not impede the ability of the parties an amount sufficient to consummate the Mergertransactions contemplated hereby as promptly as practicable following the occurrence of such event with terms and conditions (including market flex provisions) not less favorable, all conditions taken as a whole, to receipt of Buyer than the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the terms and conditions set forth in the Debt Commitment LetterFinancing Commitment; provided, that, Buyer shall not be required to consummate the Debt Financing at (i) pay any fees or prior to the Closing, (D) to comply with its obligations under expenses in excess of those contemplated by the Debt Commitment Letter, as of the date hereof in any material respect and taken as a whole or (Eii) agree to consummate terms that are less favorable (including any “flex” provisions) than those contemplated by the Debt Financing at or prior to Commitment as of the Effective Timedate hereof (taken as a whole). In the event that all conditions precedent expressly set forth any alternative financing is obtained in accordance with the preceding sentence (“Alternative Financing”), references in this Agreement to the “Debt Commitment Letter have been orFinancing” shall also be deemed to refer to such Alternative Financing, upon funding of and if one or more commitment letters or definitive financing agreements are entered into or proposed to be entered into in connection with such Alternative Financing, references in this Agreement to the “Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders Commitment” and the other persons providing or committing to provide the “Definitive Debt Financing Agreements” shall also be deemed to comply with their obligations under the Debt Commitment Letter refer to such commitment letters and definitive financing agreements relating to such Alternative Financing, and all obligations of Buyer pursuant to fund on or before this Section 5.12(a) shall be applicable thereto to the Effective Time same extent as Buyer’s obligations with respect to the Debt FinancingFinancing it replaces. Parent Upon request, Buyer shall keep the Company Seller informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide . Notwithstanding anything to the Company copies contrary contained in this Agreement, in no event shall the reasonable best efforts of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees Buyer require or be deemed or construed to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior require Buyer to the Closing Date (i) seek equity financing from any source or seek equity financing in excess of the Debt amount set forth in the Equity Financing Commitment Letter is terminated for any reason, or (ii) Parent becomes aware pay any fees in excess of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing those contemplated by the Debt Commitment Letter on (whether to secure waiver of any conditions contained therein or otherwise) in any material respect taken as a whole.
(b) During the terms set forth therein. Parent Pre-Closing Period, Seller shall promptly provide any information use reasonable best efforts to, and shall cause its Subsidiaries, Affiliates and their respective Representatives to use reasonable best efforts to, provide, at Buyer’s sole cost and expense, such reasonable cooperation and assistance reasonably requested by the Company relating to any circumstances referred to Buyer in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of connection with the Debt Financing.
, including, without limitation, using reasonable best efforts to (di) Parent shall have furnish to Buyer as promptly as reasonably practicable the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt Required Information (including notesany updates as may be necessary for such Required Information to remain Compliant); (ii) participate (including by Parent for all or any portion causing members of management of the Business to participate) upon reasonable advance notice in a reasonable number of meetings, presentations, roadshows and due diligence, drafting sessions, rating agency meetings and other sessions with prospective lenders and investors (including reasonable best efforts to cause its independent auditor to participate in due diligence sessions as reasonably requested) contemplated by the Debt Commitment Letter, in each case in connection with the Debt Financing and only to the extent customarily needed for financings of the type contemplated by reducing commitments under the Debt Commitment Letter; provided that (viii) such reasonably assist Buyer and the Financing Sources with the preparation of materials for bank information memoranda, lender presentations, investor presentations (including “roadshow” or investor meeting slides), an offering or other incurrence of debt does not result memorandum customarily used in a breach Rule 144A high yield offering of non-convertible debt securities, rating agency presentations and similar documents reasonably required or default under, or violation of, requested by the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid Buyer in connection with the transactions contemplated by this AgreementDebt Financing; (iv) facilitate the execution and delivery of, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification definitive documents related to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash including the pledging of collateral by any Transferred Employee; provided, that Seller and cash equivalents available to Parent, is sufficient to pay all amounts its Affiliates and their Representatives shall not be required to be paid in connection execute or enter into or perform any agreement with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified Financing (other than customary rating agency letters, customary “know your customer” certifications pursuant to 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”) and the customary authorization letter referenced in clause (iix) below) that is not conditioned upon the occurrence of the Closing; (v) assist with the preparation (and authorization and execution by any Transferred Employee, if applicable) of any pledge and security documents, guarantees, customary officer’s certificates, payoff documentation (including the delivery of customary payoff letters, if applicable, lien releases and termination documentation) or definitive financing documents as may be reasonably requested by ▇▇▇▇▇ and in each case conditioned upon the occurrence of the Closing; (vi) assist with Buyer’s preparation of pro forma financial statements customarily included in an offering memorandum used in a Rule 144A high yield offering of non-convertible debt securities, (iivii) facilitate its certified independent auditors to (A) agree to use of their audit reports in any reference in this Agreement materials relating to the Financing, (B) attend accounting diligence sessions, (C) provide consistent with customary practice, customary comfort letters (including customary “Debt Commitment Letternegative assurance” shall be deemed and changed period comfort) with respect to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter financial information relating to the extent then in effectBusiness (including the applicable Required Information), and (iiiD) any reference provide reasonable and customary assistance and cooperation in this Agreement connection with the Debt Financing (and using reasonable best efforts to “fee letter” shall be deemed provide customary representations to include any fee such independent auditor as required in connection with such independent auditor’s comfort letter relating in connection with the foregoing), in each case as reasonably requested by ▇▇▇▇▇ as necessary or customary for financing similar to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
Financing; (eviii) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance reasonably cooperate with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to customary due diligence of the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.Debt Financing Sources; and
Appears in 1 contract
Sources: Purchase Agreement (Open Text Corp)
Financing. (a) Subject to During the terms and conditions period commencing on the date of this AgreementAgreement and terminating on the earlier to occur of the Closing and the termination of this Agreement pursuant to Article VIII, Parent shall not without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed) permit any amendment, supplement, replacement or other modification to be made to, or any consent or waiver of any provision or remedy pursuant to, the Commitment Letter if such amendment, supplement, replacement, modification, condition or waiver would, or would reasonably be expected to, (i) reduce the aggregate amount of the Financing from that contemplated in the Commitment Letter; (ii) impose new or additional conditions or other terms or otherwise expand, amend or modify any of the conditions to the receipt of the Financing as set forth in the Commitment Letter or any other terms to the Financing as set forth in the Commitment Letter in a manner that would reasonably be expected to (A) materially delay, impede or prevent the consummation of the transactions contemplated by this Agreement; (B) make the timely funding of the Financing, or the satisfaction of the conditions to obtaining the Financing, less likely to occur in any respect; or (C) adversely impact the ability of Parent or the Company to enforce its rights against the Financing Sources under the Commitment Letter or the definitive agreements with respect thereto; provided however, for the avoidance of doubt, Parent may (x) amend, supplement and/or modify the Commitment Letter solely to add lenders, syndication agents or similar entities as parties thereto who had not executed the Commitment Letter as of the date hereof and (y) correct non-substantive typographical errors, in each case, so long as the commitments of the Financing Sources are not reduced. Parent shall furnish to the Company a copy of any amendment, restatement, replacement, supplement, modification, waiver or consent of or relating to the Commitment Letter promptly upon execution thereof. Parent shall not release or consent to the termination of the Commitment Letter or the termination or reduction of any commitments provided thereunder.
(b) During the period commencing on the date hereof and terminating on the earlier to occur of the Closing and the termination of this Agreement pursuant to and in accordance with Article VIII, Parent will use its reasonable best efforts to take, take or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper and advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Letter, including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s(i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter in accordance with its terms and subject to the conditions thereof (provided that subject to Parent’s right to replace, restate, supplement, modify, assign, substitute or amend the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in accordance with this Section 6.136.15), (Bii) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, thereof) all conditions to receipt of funding that are to be satisfied by Parent in the full amount of Commitment Letter; (iii) in the Debt Financing event that all conditions in the Commitment Letter (other than conditions that by their nature are to be satisfied at the Closing set forth therein Closing) have been satisfied (other than those conditions that are within its control would be expected to be satisfied substantially concurrently with the Closing) consummate or subject cause to its influence and, upon satisfaction of be consummated the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, ; (Div) to comply with its obligations under pursuant to the Debt Commitment Letter; and (v) enforce its rights pursuant to the Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause including seeking specific performance against the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. .
(c) Parent shall (i) keep the Company fully informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, and (ii) promptly following request by the Company, provide to the Company with copies of all executed Debt Financing Agreements.
(c) definitive agreements related to the Financing. Without limiting the generality of the foregoing, Parent agrees to notify shall give the Company promptly, and prompt written notice (but in any event within not later than two (2Business Days after the occurrence or discovery thereof) Business Days, if at any time prior to the Closing Date (i) of any breach (or threatened breach), default (or any event or circumstance that, with notice or lapse or time or both, could reasonably be expected to give rise to any breach or default), termination or repudiation by any party to the Debt Commitment Letter is terminated for any reasonor definitive agreements related to the Financing of which Parent becomes aware, (ii) of the receipt by Parent becomes aware of any notice or other communication from any Person with respect to any (A) actual or potential breach, default (or any event or circumstance that, with notice or lapse or time or both, could reasonably be expected to give rise to any breach or default (A) default), termination or repudiation by any Financing Source party to the Debt Commitment Letter Letter, of any provisions thereof or of any Debt definitive agreements related to the Financing Agreement or (B) material dispute or disagreement between or among Parent on the one hand, and any of the Financing Sources on the other party to the Debt Commitment Letter or any Debt Financing Agreement ifhand, in the case of this clause (B), such breach or default would that could reasonably be expected to affect result in an actual or threatened breach, default, termination or repudiation by any party to the availability of the Debt Financing Commitment Letter, or any provision thereof, or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide occurrence of any information event or development that is reasonably requested by the Company relating likely to any circumstances referred to in this Section 6.13(c). Parent shall notprevent, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation materially impede the timely funding of all or any portion of the Debt Financing or the satisfaction of the conditions to obtaining the Financing materially less likely to occur. Upon the reasonable request of the Company, Parent shall provide the Company information in reasonable detail about the status of its efforts to arrange the Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof expressly acknowledges and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default underagrees that, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference notwithstanding anything in this Agreement to the “Debt Financing” shall include contrary, its obligations hereunder, including its obligation to consummate the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) belowClosing, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s to, or conditioned on, receipt of the Financing or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreementother financing.
Appears in 1 contract
Sources: Merger Agreement (Telenav, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain the Debt Financing on the terms and conditions (including the flex provisions) described in the Debt Commitment Letter pursuant Financing Commitments and Buyer shall not agree to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, or permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter Financing Commitments without the prior written consent of the Seller, if such amendment, supplement, replacement, modification or waiver would (Ax) reduces reduce the aggregate amount of the cash proceeds from the Debt Financing below the amount required to consummate the transactions contemplated hereby, unless such reduction constitutes a Permitted Commitment Reduction or (By) imposes impose new or additional conditions to the initial funding or otherwise expands amend, modify or expand any of the conditions precedent to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter Financing in a manner that would reasonably be expected to (xi) delay or prevent the Closing, (ii) make the funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, less likely to occur or (yiii) adversely affect impact the ability of Parent Buyer to enforce its rights against the other parties to the Debt Commitment Letter Financing Commitments or the definitive agreements with respect thereto thereto, the ability of Buyer to consummate the purchase of the Shares or the likelihood of consummation of the purchase of the Shares (provided, however, that Parent Buyer may replace or amend the Debt Commitment Letter Financing Commitments (A) to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Financing Commitments as of the date of this Agreement, in each case in accordance with the Debt Financing Commitments as of the date hereof so long as the addition of such action would parties could not reasonably be expected to delay or prevent have any of the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(beffects described in clauses (i) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (Athrough (iii) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)above, (B) to negotiate correct typographical errors and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection accordance with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceabilitythereof. Upon any such amendment, availability replacement, supplement or conditionality of, or the aggregate amount modification of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.Commitments in
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause the Financing 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 available on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacementthrough the Expiration Date.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of with respect to all material activity concerning the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to Financing and shall give the Company copies prompt notice of all executed Debt Financing Agreements.
(c) any material change with respect to such Financing. Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Daysbusiness days, if at any time prior to the Closing Date (i) the Debt any Commitment Letter is shall expire or be terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source financing source that is a party to the Debt any Commitment Letter or any Debt Financing Agreement or (B) any other party notifies Parent that such source no longer intends to provide financing to Parent on the Debt Commitment Letter or any Debt Financing Agreement ifterms set forth therein, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates for any reason Parent no longer believes in writing or orally good faith that it will not provide, or it refuses be able to provide, obtain all or any portion of the Debt Financing financing contemplated by the Debt Commitment Letter Letters on substantially the terms set forth described therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor and shall it not permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction transaction, including any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing, that would could reasonably be expected to materially impair, delay or prevent consummation of all or any portion Parent's obtaining of the Debt Financing.
(d) financing contemplated by any Commitment Letter. Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings not amend or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default underalter, or violation ofagree to amend or alter, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt any Commitment Letter following such reductionin any manner that would impair, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings delay or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with prevent the transactions contemplated by this Agreement without the prior written consent of the Company.
(c) If any Financing commitment shall be terminated or otherwise ceases to be available to Parent, Parent shall use its reasonable best efforts to obtain, and, if obtained, will provide the Company with a copy of, a new Financing commitment that provides for at least the same amount of financing and all funding conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable reasonably acceptable to the Company thanand Parent.
(d) The Company agrees to provide, and shall cause the conditions precedent set forth Subsidiaries and its and their Representatives to provide, such cooperation (including with respect to timeliness) in connection with the Debt Commitment Letter, to supplement or replace arrangement of the Debt Financing (“Alternative Debt Financing”). Trueincluding, correct without limitation, the issuance of senior notes contemplated by the Commitment Letters) as may be reasonably requested by Parent (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”the Subsidiaries), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, including (i) any reference participation in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) belowmeetings, drafting sessions and due diligence sessions, (ii) furnishing Parent and its financing sources with financial and other pertinent information regarding the Company as may be reasonably requested by Parent, including all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act and of type and form customarily included in private placements under Rule 144A of the Securities Act to consummate the offering of secured or unsecured senior or senior subordinated notes, (iii) assisting Parent and its financing sources in the preparation of (A) offering documents for any reference of the Financing and (B) materials for rating agency presentations, (iv) cooperating with the marketing efforts of Parent and its financing sources for any of the Financing, (v) providing and executing documents as may be reasonably requested by Parent, including a certificate of the chief financial officer of the Company with respect to solvency matters and consents of accountants for use of their reports in this Agreement any materials relating to the “Debt Commitment Letter” shall be deemed to include Financing, (vi) facilitating the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectpledging of collateral, and (iiivii) any reference in this Agreement using reasonable best efforts to “fee letter” shall be deemed to include any fee letter relating to obtain accountants' comfort letters, surveys and title insurance as reasonably requested by Parent. Parent shall, promptly upon request by the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing DateCompany, Parent shall provide all funds required to effect the repayment of all indebtedness under reimburse the Company Credit Agreement in full in accordance with for all reasonable out-of-pocket costs incurred by the Company Credit Agreement, subject to compliance or the Subsidiaries in connection with Section 6.14(a)(iii)such cooperation.
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Acquisition Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Financing Letters (including any applicable lender flex provisions contained in any related fee letter) and shall not permit any amendment or modification (including any replacement of any portion of the Debt Commitment Letter Financing as a result of Acquisition Sub’s election to issue a portion of the Debt Financing with mezzanine notes as provided pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under of the Debt Commitment Financing Letter as in effect as of the event of a breach thereof by the financing provider(sdate hereof) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter Financing Letters, if such amendment, supplement, replacement, modification or waiver (Ax) reduces the aggregate amount of the cash proceeds from the Debt Financing or (By) imposes new or additional conditions to the initial funding or otherwise expands 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 Financing in a manner that would reasonably be expected to (xI) delay or prevent the Merger, (II) make the funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, less likely to occur or (yIII) adversely affect the ability of Parent Parent, Acquisition Sub or the Company, as applicable, to enforce its rights against other parties to the Debt Commitment Letter Financing Letters or the definitive agreements with respect thereto (thereto; provided, that Parent and Acquisition Sub may (i) amend the Debt Commitment Financing Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Letter as of the date of this Agreement or (ii) otherwise replace or amend the Debt Financing Letter so long as (x) such action would not reasonably be expected to delay or prevent the Closing), (y) the terms are not materially less beneficial to Parent or Acquisition Sub, with respect to conditionality, than those in the Debt Financing Letter as in effect on the date of this Agreement and (z) otherwise satisfies the terms and conditions of a New Debt Commitment Letter as set forth in the third sentence of Section 6.4(b) below. Parent shall promptly deliver Notwithstanding anything to the Company truecontrary in this Agreement, complete Parent and correct copies Acquisition Sub may enter discussions regarding, and may enter into arrangements and agreements relating to the Financing to add other equity providers, so long as in respect of any such amendmentarrangements and agreements, modification the following conditions are met: (i) the aggregate amount of the Equity Financing is not reduced, (ii) the arrangements and agreements, in the aggregate, would not be reasonably likely to delay or replacementprevent the Closing and (iii) the arrangements and agreements would not diminish or release the pre-Closing obligations of the parties to the Equity Financing Letters, adversely affect the rights of Parent to enforce its rights against the other parties to the Equity Financing Letters or otherwise constitute a waiver or reduction of Parent’s rights under the Equity Financing Letters.
(b) Each of Parent shall, and Acquisition Sub shall cause its Affiliates and Representatives to, use its reasonable best efforts (AI) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)Financing Letters, (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (CII) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to such definitive agreements and consummate the Debt Financing at or prior to the ClosingClosing (taking into account the expected timing of the Marketing Period), (DIII) to comply with its obligations under the Debt Commitment LetterFinancing Letters, and (EIV) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their its rights under, and cause under the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt FinancingLetters. 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, promptly following request by the Company, Financing and provide to the Company copies of all executed definitive documents related to the Financing (provided that any fee letter related to the Financing shall be provided in a redacted form). If any portion of the Debt Financing Agreements.
becomes unavailable on the terms and conditions contemplated in the Debt Financing Letter (cincluding any applicable lender flex provisions contained in any related fee letter) or the Debt Financing Letter shall be terminated or modified in a manner materially adverse to Parent or Acquisition Sub for any reason, Parent shall make reasonable inquiries over the ensuing twenty (20) Business Days to obtain alternative financing from banks of nationally recognized standing which customarily provide leverage financing for transactions similar to the transactions contemplated by this Agreement on terms not materially less favorable to Parent or Acquisition Sub as those contained in the Debt Financing Letter and in an amount not less than the aggregate amount of Debt Financing provided for in the Debt Financing Letter as in effect on the date of this Agreement (“Alternate Financing”) and, if available, use reasonable best efforts to obtain such Alternative Financing and, if obtained, will provide the Company with a copy of, a new financing commitment letter that (I) provides for at least the same amount of financing as provided under the Debt Financing Letter originally issued, (II) does not impose new or additional conditions that were not contained in the Debt Financing Letter originally issued, or otherwise expands, amends or modifies any of the conditions that were contained in the Debt Financing Letter originally issued to the receipt of the Financing in a manner reasonably expected to (x) delay or prevent the Merger, (y) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur, and (III) on terms and conditions not materially less favorable to Parent or Acquisition Sub than those included in the Debt Financing Letter originally issued (the “New Debt Financing Letter”). To the extent applicable, each of Parent and Acquisition Sub shall use its reasonable best efforts (I) to maintain in effect the New Debt Financing Letter, (II) to satisfy all conditions to the definitive agreements with respect to and consummate the Alternate Financing at or prior to the Closing (taking into account the expected timing of the Marketing Period), (III) to comply with its obligations under the New Debt Financing Letter, and (IV) to enforce its rights under the New Debt Financing Letter. Without limiting the generality of the foregoing, Parent agrees to notify and Acquisition Sub shall give the Company promptly, as promptly as reasonably practicable notice and in any event within two (2) Business Days, 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 breach or default by any party to any Financing Letters or definitive document related to the Financing of which Parent and Acquisition Sub become aware; (ii) of the receipt of any written notice or other written communication from any Financing source with respect to any: (A) breach, default, termination or repudiation by any Financing Source party to the Debt Commitment Letter any Financing Letters or any Debt definitive document related to the Financing Agreement of any provisions of the Financing Letters or any definitive document related to the Financing or (B) material dispute or disagreement between or among any other party parties to any Financing Letters or any definitive document related to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or Financing; and (iii) a counterparty indicates if for any reason Parent or Acquisition Sub believes in writing or orally good faith that it will not provide, or it refuses be able to provide, obtain all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Commitment Letter on Financing Letters or the terms set forth thereindefinitive documents related to the Financing. As soon as reasonably practicable, but in any event within two (2) Business Days of the date the Company delivers Parent or Acquisition Sub a written request, Parent and Acquisition Sub shall promptly provide any information reasonably requested by the Company relating to any circumstances circumstance referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, clause (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below), (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and or (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to of the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectimmediately preceding sentence.
(ec) On Parent and Acquisition Sub shall use their reasonable best efforts to cause the lenders and any other Persons providing Financing to fund on the Closing Date, Parent shall provide all funds Date (taking into account the expected timing of the Marketing Period) the Financing required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the other transactions contemplated by this Agreement if all conditions to closing contained in Article VIII are satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions).
(d) For purposes of this Agreement, “Marketing Period” shall mean the first period of thirty (30) consecutive calendar days after the date Parent and its financing sources have received from the Company the Required Information.
Appears in 1 contract
Sources: Merger Agreement (infoGROUP Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Buyer shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, necessary or advisable or proper to arrange and obtain the Debt Financing as promptly as practicable following the Original Date and to consummate the Financing on or prior to the terms and conditions described in Closing Date, including commercially reasonable efforts with respect to the following (provided that Buyer shall not be required to take any of the actions specified below with respect to the Debt Commitment Letter pursuant Letters if alternative Debt Financing is obtained so long as such alternative Debt Financing would not reasonably be expected to (x) materially delay or prevent the terms thereof Closing, or (including y) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur):
(i) (A) maintaining in effect the Commitment Letters, and (B) not permitting any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement amendment or modification to be made to, or not consenting to any waiver of any provision or remedy under, the Debt and not replacing, any Commitment Letter Letter, if such amendment, supplementmodification, replacement, modification waiver or waiver replacement (AI) reduces the aggregate amount of the cash proceeds from Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any unless as part of the conditions to relevant amendment, modification, waiver or replacement there is a corresponding increase in the receipt of the Debt Equity Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that (II) would reasonably be expected to (x) materially delay or prevent the Closing, or (y) in such a way that would make the funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on less likely to occur. Notwithstanding the Closing Dateforegoing, Buyer may modify, restate, supplement, amend or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend and restate the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents, co-agents, other agents or similar entities so long that have not executed the Debt Commitment Letter as such action would not reasonably be expected of the Original Date or to delay or prevent increase the Closing). Parent amount of funds available thereunder (and Buyer shall promptly deliver to the Company true, complete and correct copies of any such amendment, restatements, supplementation, modification or replacementwaiver of the Debt Commitment Letter to Seller);
(ii) complying in all material respects with its obligations under the Commitment Letters;
(iii) participation by senior management of Buyer in, and assistance with, the preparation of rating agency presentations and meetings with rating agencies;
(iv) causing the Financing to be consummated on or prior to the Closing;
(v) satisfying on a timely basis all Financing Conditions or other conditions applicable to Buyer in the Commitment Letters that are within its control;
(vi) negotiating, executing and delivering any documents required by the Commitment Letters (including any “market flex” provisions related thereto) and providing copies thereof to Seller;
(vii) borrowing under and using the proceeds of the Debt Financing and using the proceeds of the Equity Financing to finance, in part, the Closing Date Payments and complying with any requirements to obtain such Debt Financing and Equity Financing; and
(viii) enforcing its rights under the Commitment Letters in the event of a Financing Failure Event; provided, that Buyer will not be required to take legal action against any Financing Source.
(b) Parent shall, Buyer shall consult with and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company Seller reasonably informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request . Buyer shall give Seller prompt notice of any actual or threatened breach or repudiation by the Company, provide any Party to the Company copies Commitment Letters of all executed Debt Financing Agreements.
(c) which Buyer or its Affiliates becomes aware. Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business DaysBuyer’s other obligations under this Section 5.18, if at any time prior to the Closing Date a Financing Failure Event occurs, Buyer shall (i) promptly (within one (1) calendar day) notify Seller of such Financing Failure Event and the Debt Commitment Letter is terminated for any reasonreasons therefor, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party in consultation with Seller use its commercially reasonable efforts to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement ifobtain alternative financing from alternative financing sources, in the case of this clause (B), such breach or default would reasonably be expected an amount sufficient to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to make the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash Date Payments and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement, (x) as promptly as practicable following the proceeds occurrence of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectevent, and (iii) any reference in this Agreement use its commercially reasonable efforts to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter obtain, and when obtained, provide Seller with a copy of, a replacement financing commitment that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectprovides for such alternative financing.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Jacobs Engineering Group Inc /De/)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent 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 or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Financing Commitments, and shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter Financing Commitments if such amendment, supplement, replacement, modification or waiver would (Ai) reduces reduce the aggregate amount of the cash proceeds from Financing (including by changing 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), or (Bii) imposes impose new or additional conditions to the initial funding conditions, or otherwise expands amend, modify or expand any of the conditions conditions, to the receipt of the Debt Financing, in any such case of (i) or otherwise expands(ii) above, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (xA) delay or prevent the Closing, (B) make the funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, less likely to occur or (yC) adversely affect impact the ability of Parent or Merger Sub or, with respect to the Equity Financing, the Company to enforce its rights against the other parties to the Debt Commitment Letter Financing Commitments or the definitive agreements with respect thereto thereto, the ability of Parent or Merger Sub to consummate the Transactions or the likelihood of consummation of the Transactions.
(providedb) Notwithstanding anything in Section 5.17(a) to the contrary, that Parent and Merger Sub may (i) amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as of the date of this Agreement, or (ii) otherwise amend or replace the Debt Commitment Letter so long as as: (x) such action would not reasonably be expected to delay or prevent the Closing), (y) the terms are not, taken as a whole, materially less beneficial to Parent or the Company than those in the Debt Commitment Letter as in effect on the date of this Agreement, and (z) with respect to replacements, the replacement debt commitments otherwise satisfy the terms and conditions of an Alternative Financing Commitment set forth below. Parent shall promptly deliver Notwithstanding anything in Section 5.17(a) to the Company truecontrary, complete Parent may enter into discussions regarding, and correct copies may enter into arrangements and agreements relating to, the Equity Financing to add other equity providers, on the condition that such arrangements or agreements: (i) do not reduce the aggregate amount of the Equity Financing, (ii) do not impose terms or conditions that would reasonably be expected to delay or prevent the Closing, and (iii) with respect to any such amendmentequity provider, modification or replacementsuch equity provider enters into an Equity Commitment Letter on substantially the same terms and conditions as the Equity Commitment Letters then in effect.
(bc) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts to: (Ai) to maintain in effect the Debt Commitment Letter Financing Commitments (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided including any definitive agreements entered into in this Section 6.13connection with any such Financing Commitments), (Bii) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment LetterLetter or consistent in all material respects with the Debt Commitment Letter (such definitive agreements, together with the Financing Commitments, the “Financing Agreements”) and promptly upon execution thereof provide complete executed copies of such definitive agreements to the Company, (Ciii) to satisfy on a timely basis all conditions in the Financing Agreements applicable to Parent and Merger Sub to obtaining the Financing, (or obtain the waiver of), and in a manner that will not impede the ability of the parties to iv) consummate the Merger, all conditions to receipt of the full amount of Equity Financing and the Debt 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, to consummate the Debt Financing at or prior to substantially concurrently with the Closing, and (Dv) to comply with fully enforce the counterparties’ obligations and its obligations rights under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt FinancingAgreements. Parent shall keep the Company reasonably informed on a current timely basis and in reasonable detail of the status of its Parent’s and Merger Sub’s efforts to arrange the Debt FinancingFinancing and to satisfy the conditions thereof, andincluding, promptly following request by upon Company’s reasonable request, (i) advising and updating the Company, provide in a reasonable level of detail, with respect to status, proposed Closing Date and material terms of the Company material definitive documentation for the Financing and (ii) providing copies of then current drafts of all executed Debt Financing Agreementssuch definitive documentation.
(cd) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter on the terms set forth therein. applicable Financing Agreements, (i) Parent shall promptly provide any information reasonably requested by notify the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
and (dii) Parent shall have use its reasonable best efforts to arrange and obtain alternative financing from alternative sources in an amount sufficient to consummate the right to substitute the net cash proceeds received by Parent after the date hereof Transactions with terms and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does conditions not result in materially less favorable, taken as a breach or default underwhole, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies Merger Sub and the Company of such substitution than the terms and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt applicable Financing Agreements (“Alternative Debt FinancingFinancing Commitments”). True, correct and complete copies of each alternative financing commitment in respect ) as promptly as practicable following the occurrence of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Companyevent. In the event any New Debt Commitment Letter is obtainedsuch event, (i) any reference in this Agreement to the term “Debt Financing” as used in this Agreement shall be deemed to include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) belowany Alternative Financing Commitments, (ii) any reference in the term “Financing” shall be deemed to include the Equity Financing and the Debt Financing as modified by clause (i) of this Agreement to sentence, (ii) the term “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter any commitment letters with respect to the extent then in effectAlternative Financing Commitments and any related fee letters, and (iiiiv) any reference in this Agreement to the term “fee letterFinancing Agreements” shall be deemed to include any fee letter relating definitive agreement with respect to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectAlternative Financing Commitments.
(e) On the Closing DateNotwithstanding anything contained in this Section 5.17 or in any other provision of this Agreement, in no event shall Parent shall provide all funds or Merger Sub be required to effect amend or waive any of the repayment terms or conditions hereof or of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii)Financing Agreements.
(f) Notwithstanding anything Parent acknowledges and agrees that obtaining the Financing (including any Alternative Financing Commitments) is not a condition to the contrary contained hereinClosing, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of and reaffirms its Affiliates’ obtaining funds obligation to consummate the Merger Transactions irrespective and independently of the transactions contemplated by this Agreementavailability of the Financing, subject to the satisfaction of the applicable conditions set forth in Section 6.1 and Section 6.2.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent RG shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions (including, if applicable, any "market flex" provisions contained in the related fee letter) described in the Debt Commitment Letter pursuant Letters with respect to the terms thereof conditionality, timing, availability, and aggregate amount of the Financing (including any “market flex” provisions) including using its reasonable best efforts the amounts to seek to enforce its rights under be funded thereunder at the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunderClosing). Parent RG shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter Letters without the Table of Contents Company's prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) if such amendment, supplement, replacement, modification or waiver (Ai) reduces the aggregate amount of the cash proceeds from Financing to an amount below the Debt Financing or amount required to satisfy the applicable payment obligations of the Company under this Agreement, (Bii) imposes new or additional impairs in any material respect the availability of the Financing, (iii) amends the conditions precedent to the initial funding or otherwise expands 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 Financing in a manner that would reasonably be expected to (x) delay in any material respect or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing DateClosing, or (yiv) adversely affect impacts in any material respect the ability of Parent RG to enforce its or cause the enforcement of the rights against other parties to of RG under the Debt Commitment Letter or the definitive agreements with respect thereto Letters (provided, that Parent RG may amend amend, supplement or replace the Debt Commitment Letter Letters 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). Parent RG shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its commercially reasonable best efforts (Ai) to maintain in effect the Debt Commitment Letter (provided that Letters until the Debt Commitment Letter may be amended, supplemented, replaced, modified funding of the Financing at or waived as provided in this Section 6.13), (B) prior to Closing and to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) Letters on the terms and conditions contained in the Debt Commitment Letters (including, if applicable, giving effect to any "market flex" provisions contained in any related fee letter) (or on terms no less favorable (taken as a whole) to RG, as applicable), (ii) to satisfy on a timely basis all conditions to receipt of the Financing that are within RG's control, (iii) upon satisfaction of such conditions and the conditions set forth in Section 5.1 and Section 5.2, to consummate the Financing at or prior to the Closing (with respect to amounts required to consummate the Merger and make other payments due at such time in accordance with the terms hereof) and (iv) to comply in all material respects with its obligations under the Debt Commitment Letters.
(b) If any portion of the Financing contemplated by the Debt Commitment Letters becomes unavailable on the terms and conditions (including, if applicable, "market flex" provisions) contemplated by the Debt Commitment Letters, (i) RG shall promptly notify the Company and (ii) RG shall use its commercially reasonable best efforts to arrange and obtain alternative financing from the same or alternative sources in an amount sufficient to consummate the Transactions with terms and conditions that are not materially less favorable to Parent in any respect from the standpoint of RG (as reasonably determined by RG) than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), terms and 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 Debt 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, to consummate Letters and any related fee letters as promptly as reasonably practicable following the Debt Financing at or prior to occurrence of such event (the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the "Alternative Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent RG shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies copy of each alternative financing commitment letter in respect of such Alternative Debt Financing (each, a “"New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided ") to the Company. In the event any New Debt Commitment Letter is Letters are obtained, (i) any reference in this Agreement to the “Debt "Financing” " shall include the debt financing contemplated by the Debt Commitment Letter Letters as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “"Commitment Letters" or the "Debt Commitment Letter” " shall be deemed to include the Debt Commitment Letter which is Letters that are not superseded by a New Debt Commitment Letter Letters at the time in question and each the New Debt Commitment Letter Letters to the extent then in effect, and (iii) any reference in this Agreement to “"fee letter” " shall be deemed to include any fee letter relating to the Debt Commitment Letter Letters that is are not superseded by any a New Debt Commitment Letter Letters at the time in question and each the New Debt Commitment Letter Letters to the extent then in effect.
(ec) On Upon the Closing DateCompany's request, Parent RG shall provide all funds required to effect the repayment of all indebtedness under keep the Company Credit Agreement in full in accordance with reasonably informed of the status of its efforts to arrange the Financing and provide to the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
copies of the material definitive documents for the Financing. RG shall give the Company prompt notice: (fi) Notwithstanding anything of any breach of any material provisions of the Debt Commitment Letters by any party to the contrary contained hereinDebt Commitment Letters related to the Financing of which RG has knowledge; and (ii) of the receipt of any written notice or other written communication from a financing source for the Financing with respect to any actual breach, Parent’s obligations hereunder are not subject default, termination or repudiation by any party to a condition regarding Parent’s the Debt Commitment Letters or any definitive document related to the Financing or any material provisions of its Affiliates’ obtaining funds the Debt Commitment Letters or any definitive document related to consummate the Merger and the transactions contemplated by this Agreement.Financing; Table of Contents
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, a. Parent shall use its reasonable best efforts to takeobtain, or cause to be takenobtained, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the proceeds of the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Letter, including using its reasonable best efforts to: (1) maintain in effect the Debt Commitment Letter; (2) negotiate and enter into definitive agreements with respect to seek the Debt Financing (the “Definitive Agreements”) consistent with the terms and conditions contained therein or on other terms that are no less favorable to enforce its rights under Parent than those contained in the Financing Agreements; and (3) taking into account the expected timing of the Marketing Period, satisfy on a timely basis all conditions applicable to Parent to obtaining the Debt Financing that are within Parent’s control. In the event that all conditions contained in the Debt Commitment Letter in have been satisfied (or upon funding will be satisfied), Parent shall use its reasonable best efforts to timely cause the event of a breach thereof by Lender to fund the financing provider(s) thereunder. Debt Financing at the Closing.
b. Parent shall not, without the Company’s prior written consentconsent of Company: (1) terminate the Debt Commitment Letter, unless the Debt Commitment Letter is replaced in a manner consistent with the following clause (2); or (2) permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of of, any provision or remedy under, or replace, the Debt Commitment Letter if such amendment, supplementmodification, waiver or replacement: (x) would (1) add any new condition to the Debt Financing Commitment (or modify any existing condition in a manner adverse to Parent) or otherwise that would be reasonably expected to materially and adversely affect (including with respect to timing, modification taking into account the expected timing of the Marketing Period)) the ability of Parent to consummate the transactions contemplated by this Agreement and the other Covered Agreements; or waiver (A2) taking into account the expected timing of the Marketing Period, be reasonably expected to make the timely funding of the Debt Financing or satisfaction of the conditions to obtaining the Debt Financing materially less likely to occur; (y) reduces the aggregate amount of the cash proceeds from the Debt Financing to an amount such that the transactions contemplated hereby or by the other Covered Agreements could not be consummated; or (Bz) imposes new or additional conditions to taking into account the initial funding or otherwise expands any expected timing of the conditions to the receipt of the Debt FinancingMarketing Period, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) prevent, impede or materially delay or prevent the funding in full consummation of the Debt Financing (or satisfaction of Merger and the conditions to other transactions contemplated by this Agreement and the Debt Financing) on other Covered Agreements; provided that, notwithstanding the Closing Dateforegoing, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, it is hereby understood and agreed that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long who had not executed the Debt Commitment Letter as of the date hereof and provide such action would lenders, lead arrangers, bookrunners, syndication agents or similar entities with consent rights with respect to existing conditions to the consummation of the Debt Financing to the extent that the commitments in the aggregate of the lenders to provide the Debt Financing are not reasonably be expected to delay or prevent the Closing)reduced as a result of any such amendment. Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification modification, waiver or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability replacement of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the any Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (MTS Systems Corp)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its commercially reasonable best efforts to take, or cause to be taken, all actions obtain and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain effectuate the Debt financing contemplated by the Financing Commitments on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt Financing at the Closing set forth therein that are within its control or subject therein, except that, in addition thereto, it may also seek funding which it reasonably believes is more advantageous to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective TimeParent. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptlypromptly if, and in any event within two (2) Business Days, if at any time prior to the Closing Date Effective Time, (i) the Debt Commitment Letter is Financing Commitments expire or are terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source financing source that is a party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party Commitments notifies Parent that such source no longer intends to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected provide financing to affect the availability of the Debt Financing Parent or (iii) a counterparty indicates for any reason Parent no longer believes in writing or orally good faith that it will not provide, or it refuses be able to provide, all or obtain at Closing any portion of the Debt Financing financing as necessary to consummate the transactions contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c)Agreement. Parent shall not, nor and shall it not permit any of its Affiliates subsidiaries to, without the prior written consent of the Company, take any action or enter into any transaction material transaction, including, without limitation, any merger, acquisition, joint venture, disposition or debt or equity financing that would is reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) financing contemplated by the Financing Commitments. Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings not amend or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default underalter, or violation ofagree to amend or alter, the Debt Commitment LetterFinancing Commitments in any manner that is reasonably expected to impair, (w) delay or prevent the aggregate amount Merger without the prior written consent of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with Closing has not occurred on or before the preceding sentence, the obligations termination date of the Company Financing Commitments and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Furtherthis Agreement has not been properly terminated, Parent shall have and Merger Sub will use commercially reasonable efforts to obtain, and if obtained will provide the right to substitute commitments in respect of other financings for all or any portion Company with a copy of, either an extension of the Debt Financing from Commitments or a new financing commitment that, in either case, provides for at least the same and/or alternative amount of financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to Financing Commitments as originally issued on terms (including funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company thanconditions) the conditions precedent set forth not less beneficial in the Debt Commitment Letter, aggregate to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely Parent compared to those included in the case of the fee letterFinancing Commitments as originally issued, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability any such extension or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” new commitment shall include a termination date not earlier than the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectWalk-Away Date.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Proquest Co)
Financing. Grizzly shall not agree to any amendment or modification to be made to, or any waiver of any provision or remedy under, the Spinco Commitment Letter and the Spinco Related Letter without the prior written consent of Burgundy (a) Subject and, to the terms extent Section 8.3 is applicable, such consent is subject to Burgundy’s obligations in Section 8.3), if such amendments, modifications or waivers would reasonably be expected to (i) reduce the aggregate amount of the Spinco Financing below the Below Basis Amount, (ii) impose new or additional conditions to the receipt of the Spinco Financing that would reasonably be expected to (A) expand in any material respect the conditions precedent or contingencies to the funding at Closing, (B) prevent or materially delay the consummation of the transactions contemplated by this Agreement and conditions the other Transaction Agreements, or (C) materially adversely impact the ability of Grizzly to enforce its rights against the other parties to the Spinco Commitment Letter (provided that for the avoidance of doubt, Grizzly may, without the consent of Burgundy, replace or amend the Spinco Commitment Letter and the Spinco Related Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities, if the addition of such additional parties, individually or in the aggregate, would not reasonably be expected to prevent or materially delay or impair the availability of financing under the Spinco Commitment Letter and the Spinco Related Letter, obtaining from the IRS the Private Letter Ruling (including the IRS D Reorganization Ruling and the IRS Debt Exchange Ruling) or the consummation of the transactions contemplated by this Agreement, Parent Agreement and the other Transaction Agreements) or (iii) prevent or materially delay obtaining from the IRS the Private Letter Ruling (including the IRS D Reorganization Ruling and the IRS Debt Exchange Ruling). Grizzly and Merger Sub shall each 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 or proper to arrange and obtain the Debt Spinco Financing on the terms and conditions described in or contemplated by the Debt Spinco Commitment Letter pursuant to and the terms thereof (including any “market flex” provisions) Spinco Related Letter, including using its reasonable best efforts to seek to enforce its rights under (1) maintain in effect the Debt Spinco Commitment Letter and the Spinco Related Letter, (2) satisfy on a timely basis (taking into account the expected timing of the Marketing Period) all conditions and covenants applicable to Grizzly in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Spinco Commitment Letter if such amendmentand the Spinco Related Letter and otherwise comply with its obligations thereunder, supplement, replacement, modification or waiver (A3) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on enter into definitive agreements substantially concurrently with the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Spinco Debt Financing Agreements”) on the terms and conditions that are not materially contemplated by the Spinco Commitment Letter and the Spinco Related Letter (or terms and conditions (including the flex provisions) no less favorable to Parent than those contained Grizzly and Spinco (in the Debt reasonable discretion of Grizzly) than the terms and conditions in the Spinco Commitment Letter and the Spinco Related Letter), (C4) to satisfy on a timely basis (or obtain in the waiver of)event that all conditions in the Spinco Commitment Letter and the Spinco Related Letter have been satisfied, and 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 Debt 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, to consummate the Debt Spinco Financing at or prior to the Closing, (D5) to comply with enforce its obligations rights under the Debt Spinco Commitment Letter, Letter and the Spinco Related Letter and (E6) to consummate the Debt Financing at or prior to the Effective Time. In in the event that all conditions precedent expressly set forth in the Debt Spinco Commitment Letter and the Spinco Related Letter have been orsatisfied, upon funding cause the lenders providing the Spinco Financing to fund the Spinco Financing. Grizzly shall (x) furnish to Burgundy complete, correct and executed copies of the Spinco Debt Financing will beAgreements, satisfied(y) give Burgundy prompt notice of any material breach by any party of the Spinco Commitment Letter or the Spinco Related Letter or the Spinco Debt Financing Agreements of which Grizzly becomes aware or any termination thereof and (z) upon Burgundy’s request, Parent otherwise keep Burgundy reasonably informed of the status of Grizzly’s efforts to arrange the Spinco Financing (or any replacement thereof) and Sub the other financing transactions contemplated by this Agreement (or any replacement thereof). If any portion of the Spinco Financing becomes unavailable on the terms and conditions contemplated in the Spinco Commitment Letter and the Spinco Related Letter (including the flex provisions) from sources contemplated in the Spinco Commitment Letter and the Spinco Related Letter, Grizzly and Spinco shall use their reasonable best efforts to enforce their rights underarrange and obtain alternative debt financing from alternative debt sources for the same purposes as the purposes of the Spinco Financing in an amount not less than the Below Basis Amount upon terms and conditions not less favorable, taken as a whole, to Grizzly and cause Spinco (in the Financing Sources, lenders and reasonable discretion of Grizzly) than those in the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Spinco Commitment Letter and definitive financing agreements and to fund on or before the Effective Time Spinco Related Letter as promptly as practicable following the Debt Financing. Parent shall keep the Company informed on a current basis and in occurrence of such event, including using reasonable detail of the status of its best efforts to arrange the Debt Financingenter into definitive agreements with respect thereto. Further, andGrizzly may, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without with the prior written consent of Burgundy (which consent shall not be unreasonably withheld, conditioned or delayed), if it so determines in its discretion, arrange for alternative financing for the CompanySpinco Financing from a third party or parties (and, take any action in such instance, references herein to the “Spinco Commitment Letter” shall mean and include the written commitment of such third party or enter into any transaction parties in respect thereof), if such alternative financing does not (i) reduce the aggregate amount of the Spinco Financing below the Below Basis Amount, (ii) impose new or additional conditions to the receipt of the Spinco Financing that would reasonably be expected to (A) expand in any material respect the conditions precedent or contingencies to the funding at Closing, (B) prevent or materially impair, delay or prevent the consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality ofTransaction Agreements, or (C) materially adversely impact the aggregate amount ability of proceeds available underGrizzly to enforce its rights against the other parties thereto, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.or
Appears in 1 contract
Financing. (a) Subject Parent has delivered to the Company on the date hereof true and complete copies of an executed equity commitment letter (the “Equity Commitment Letter”) from Gores Capital Partners III, L.P. (the “Sponsor”) to provide, subject to the terms and conditions therein contained, equity financing to Parent and EuCo to which the Sellers are express third party beneficiaries (the “Equity Financing”).
(b) The Equity Commitment Letter is a legal, valid and binding obligation of this Agreementthe Buyers and the other parties thereto, Parent shall use enforceable (subject to the Enforceability Exceptions) in accordance with its reasonable best efforts terms. The Equity Commitment Letter, in the form delivered 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 Company on the terms date hereof, is in full force and conditions described in effect, and the Debt Equity Commitment Letter pursuant to the terms thereof (including has not been withdrawn, rescinded or terminated or otherwise amended or modified in any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement respect and no such amendment or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver is contemplated.
(Ac) reduces the aggregate amount None of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands Buyers is in breach of any of the terms or conditions to set forth in the receipt Equity Commitment Letter, and assuming the accuracy of the Debt Financing, or otherwise expands, amends or modifies any other provision representations and warranties of the Debt Commitment Letter Sellers contained in a manner that Article IV, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (x) delay constitute a breach or prevent default on the funding in full part of Parent or EuCo or any other party thereto, and neither Parent nor EuCo has any reason to believe that any condition precedent set forth therein will not be satisfied. Assuming the accuracy of the Debt Financing (or satisfaction representations and warranties of the conditions to the Debt Financing) on the Closing DateSellers contained in Article IV, there is no fact or (y) adversely affect the ability occurrence existing that, with or without notice, lapse of Parent to enforce its rights against other parties to the Debt Commitment Letter time or the definitive agreements with respect thereto (providedboth, 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 could reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain make any of the assumptions or any of the statements set forth in effect the Debt Equity Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)inaccurate, (B) to negotiate and enter into definitive agreements with respect to result in any of the Debt conditions in the Equity Commitment Letter not being satisfied, (C) cause the Equity Commitment Letter to be ineffective or (D) otherwise result in the Equity Financing not being available on a timely basis in order to consummate the Transactions. The Sponsor has not notified the Buyers of its intention to terminate the Equity Commitment Letter or not to provide the Equity Financing. The net proceeds from the Equity Financing, together with any debt financing provided by banks, financial institutions or other financing sources (in each case, other than Parent or any of its Affiliates) (the “Lenders”), the proceeds of which may be used to consummate the Transactions (the “Debt Financing AgreementsFinancing” and, together with the Equity Financing, the “Financing”) on the terms ), funds provided by Parent or its Affiliates and conditions that are not materially less favorable cash and cash equivalents of or available to Parent than those contained in the Debt Commitment Letterand EuCo, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties be sufficient to consummate the MergerTransactions, all conditions to receipt including the repayment by the Acquired Companies of the full amount indebtedness and other outstanding amounts in respect thereof set forth in Section 4.8(b) of the Debt Financing at Sellers Disclosure Letter (other than any amounts payable to the Closing Company or any of its Affiliates 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, to consummate the Debt Financing at or being discharged prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter), and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreementconsummation of the Transactions. There are no side letters, (x) the proceeds of such debt offerings understandings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment agreements or modification arrangements relating to the Debt Commitment Letter relating thereto will be promptly provided Equity Financing to which the Buyers or any of their respective Affiliates are a party. There are no conditions precedent or other contingencies related to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations funding of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate full amount of the Debt Equity Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent than as explicitly set forth in the Debt Equity Commitment Letter, to supplement or replace Letter (the Debt Financing (“Alternative Debt FinancingDisclosed Equity Conditions”). TrueNo Person has any right to impose, correct and complete copies none of each alternative financing commitment the Sponsor, any Lender, nor the Buyers has any obligation to accept, any condition precedent to such funding, other than the Disclosed Equity Conditions, nor any reduction to the aggregate amount available under the Equity Commitment Letter on the Closing Date (nor any term or condition which would have the effect of reducing the aggregate amount available under the Equity Commitment Letter on the Closing Date), except as set forth in respect of such Alternative Debt Financing (each, a “New Debt the Equity Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case . None of the fee letterBuyers has any reason to believe that it will be unable to satisfy on a timely basis any conditions to the funding of the full amount of the Equity Financing, with only or that the fee amountsEquity Financing will not be available to the Buyers on the Closing Date. For the avoidance of doubt, pricingit is not a condition to Closing under this Agreement, “market flex” provisions and other economic terms that do not adversely affect nor to the enforceabilityconsummation of the Transactions, availability for the Buyers to obtain the Financing or conditionality any alternative financing.
(d) None of the Buyers nor any of their Affiliates has caused or induced any Person to take any action that, if taken by the Buyers, would be a breach of, or would cause to be untrue, any of the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference representations and warranties in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectSection 5.7.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Claiborne Liz Inc)
Financing. (a) Subject to the terms Buyer shall, and conditions of this Agreementshall cause its Representatives to, Parent shall use its their respective reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessarynecessary to (i) maintain in effect the Equity Commitment Letters, advisable (ii) comply with its obligations in the Equity Commitment Letters and (iii) in the event that all conditions contained in the Equity Commitment Letters have been satisfied (or proper upon such funding will be satisfied), to arrange and obtain cause the Debt Equity Investors to fund the Equity Financing on the terms and conditions described in the Debt Commitment Letter pursuant Closing Date. Notwithstanding anything to the terms thereof (including any “market flex” provisions) including using its reasonable contrary contained in this Agreement, nothing contained in this Section 6.14 shall require, and in no event shall the best efforts of Buyer and its Representatives be deemed or construed to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall notrequire, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, Buyer or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification its Representatives or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 Affiliates to (x) delay amend or prevent the funding in full waive any of the Debt Financing (terms or satisfaction conditions of the conditions to the Debt Financing) on the Closing DateEquity Commitment Letters, or (y) adversely affect consummate the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter Equity Financing 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request transactions contemplated by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if Agreement at any time prior to the Closing Date Date.
(ib) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach Buyer shall not amend or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not providealter, or it refuses agree to provideamend or alter, all or the Equity Commitment Letters in any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction manner that would reasonably be expected to materially impair, delay or prevent the consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding without the prior written consent of such financing areSeller (which consent shall not be unreasonably withheld, in respect of certainty of funding, equivalent to (conditioned or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”delayed). TrueBuyer shall furnish Seller complete, correct and complete executed copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability any amendments or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided modifications to the Company. In the event any New Debt Equity Commitment Letter is obtained, within two (2) Business Days after the execution thereof.
(c) Buyer shall provide Seller with prompt notice of (i) any reference in this Agreement material breach or default by any party to the “Debt Financing” shall include the debt financing contemplated by the Debt any Equity Commitment Letter as modified pursuant to clause of which Buyer becomes aware or (ii) belowthe receipt of any written notice or other written communication from any financing source with respect to any breach, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectdefault, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded termination or repudiation by any New Debt party to any Equity Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectLetters of any provision thereof.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject Parent and Sub shall use their best efforts to satisfy all conditions applicable to Parent and Sub in the Financing Commitment and to consummate the Financing no later than the Outside Date. Solely in the event that any portion of the Financing becomes unavailable on the terms and conditions of this Agreementcontemplated in the Financing Commitment, Parent shall use its reasonable best efforts to take, obtain any such unavailable portion from alternative sources on comparable or cause more favorable terms 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 on the terms and conditions described Parent (as determined in the Debt Commitment Letter pursuant to reasonable good-faith judgment of Parent) as promptly as practicable following the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under occurrence of such event but in no event later than the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunderOutside Date. Parent shall not, without promptly provide the Company’s prior written consent, Company with the documentation evidencing any replacement or alternative sources of financing and shall give the Company prompt notice (but in any event within two Business Days) of any material breach by any party to the Financing Commitment or any termination of the Financing Commitment. Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange for the Financing (or replacements thereof) and shall not permit any amendment, supplement, replacement material amendment or modification to be made to, or any waiver of any material provision or remedy under, the Debt Financing Commitment Letter (or replacements thereof) without first consulting with the Company or, if such amendment, supplement, replacement, modification amendment would or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 be reasonably be expected to (x) prevent, delay or prevent hinder Parent’s and/or Sub’s ability to consummate the funding in full Transactions, without first obtaining the Company’s prior written consent. For the avoidance of doubt, if the Debt Financing (or satisfaction of any replacement or alternative financing) has not been obtained, Parent and Sub shall continue to be obligated to consummate the conditions to Merger and the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) Transactions on the terms contemplated by this Agreement and conditions that are not materially less favorable subject only to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (satisfaction or obtain the waiver of), and 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 Debt 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, Article VII and to consummate the Debt Financing at or prior to the Closing, (D) to comply with its Parent’s rights and obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing AgreementsArticle VIII.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, as promptly as possible, all things necessary, proper or advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Equity Commitment Letter and the Debt Commitment Letter, including maintaining in effect the Equity Commitment Letter and the Debt Commitment Letter and using reasonable best efforts to, as promptly as possible, satisfy on a timely basis all conditions applicable to Buyer obtaining the Financing set forth therein (including by consummating the Equity Financing pursuant to the terms thereof of the Equity Commitment Letter and the Debt Financing pursuant to the terms of the Debt Commitment Letter). Buyer shall give Seller prompt written notice (including i) of any “market flex” provisionsmaterial breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to result in a breach or default) including using its by any party to the Equity Commitment Letter or the Debt Commitment Letter of which Buyer becomes aware, (ii) of the receipt of any written notice or other written communication from any Person with respect to any (A) actual or potential breach, default, termination or repudiation by any party to the Equity Commitment Letter or the Debt Commitment Letter or (B) material dispute or disagreement between or among any parties to the Equity Commitment Letter or the Debt Commitment Letter (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing), (iii) in the event Buyer becomes aware that any portion of the Financing is not reasonably likely to be available to consummate the transactions contemplated by this Agreement and (iv) of any termination of the Equity Commitment Letter or the Debt Commitment Letter. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter, Buyer shall, without limiting the obligations of Buyer set forth in the immediately following sentence, use reasonable best efforts to seek arrange to enforce its rights under obtain alternative financing, including from alternative sources, on terms in the aggregate not materially less favorable to Buyer (in the reasonable judgment of Buyer) than the Debt Financing contemplated by the Debt Commitment Letter in an amount sufficient to consummate the transactions contemplated hereby (“Alternative Financing”) as promptly as practicable following the occurrence of such event and the provisions of a breach thereof by this Section 6.10 and Section 9.9 shall be applicable to the financing provider(s) thereunderAlternative Financing, and, for the purposes of this Section 6.10 and Section 9.9, all references to the Debt Financing shall be deemed to include such Alternative Financing, all references to the Debt Commitment Letter shall include the applicable documents for the Alternative Financing and all references to the Debt Financing Sources shall include the Persons providing or arranging the Alternative Financing. Parent Buyer shall notnot permit, without the Company’s prior written consentconsent of the Company, permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt any Commitment Letter if such amendment, supplement, replacement, modification or waiver 46
(Ab) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions Prior to the initial funding or otherwise expands any of Closing, Seller shall use its reasonable best efforts, and shall cause the conditions Company and the Subsidiary to use their reasonable best efforts to provide, to the receipt of the Debt Financingextent within their applicable control, or otherwise expandsBuyer, amends or modifies any other provision of the Debt Commitment Letter such customary cooperation reasonably requested by Buyer, at Buyer’s sole expense, in a manner that would reasonably be expected to (x) delay or prevent the funding in full of connection with the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, however, that Parent may amend such requests shall not unreasonably interfere with the Debt Commitment Letter to add or replace lendersongoing operations of Seller and its Affiliates, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to including the Company trueand the Subsidiary), complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use including using its reasonable best efforts to do the following: (Ai) to maintain furnishing Buyer with such financial information set forth in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to paragraph number 5 of the Debt Commitment Letter (the “Required Financial Information”) and other customary financial information as reasonably requested by Buyer to enable Buyer to prepare pro forma financial statements, in each case, to the extent customary and reasonably required pursuant to such Debt Financing Agreements”and to the extent reasonably available; (ii) on causing a member of the terms Company’s management team, with appropriate seniority and conditions that are not materially less favorable expertise, at reasonable times and upon reasonable notice, to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and participate in a manner that will not impede the ability limited number of the parties presentations to consummate the Merger, all conditions to receipt of the full amount of and meetings with the Debt Financing at Sources; (iii)
(A) assisting with the Closing set forth therein that are within its control preparation of customary syndication documents and materials required or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate reasonably requested by the Debt Financing Sources in connection with the Debt Financing; provided, however, that any such customary syndication documents and materials shall contain disclosure and pro forma financial statements reflecting Buyer as the obligor; and (B) executing and delivering customary authorization letters relating to the Debt Financing; (iv) (A) to assist in the preparation of definitive financing documentation and the schedules and exhibits thereto (including loan agreements, guarantees, collateral agreements, hedging arrangements, and customary officer’s and other closing certificates) as may reasonably be requested; and (B) to facilitate the pledging of collateral, it being understood that such documents will not take effect until on or after the Closing; (v) obtaining any Lien releases, terminations and instruments of discharge (including UCC termination statements); and (vi) furnishing Buyer promptly with all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended, that has been reasonably requested by Buyer in writing, at least 10 days prior to the Closing Date.
(c) Notwithstanding the requirements of Section 6.10(b), (i) Buyer shall be solely responsible for provision of any post-Closing pro forma financial information, including cost savings, synergies, capitalization, ownership or other pro forma adjustments and any financial projections of the Company for and after the Closing, (ii) neither the Company nor the Subsidiary or their respective Representatives shall be required to enter into any certificate, document, agreement or instrument which will be effective prior to the Closing, (Diii) none of Seller, the Company or the Subsidiary will be required to comply pay any commitment or other similar fee or incur any other liability in connection with its obligations under the Debt Commitment LetterFinancing prior to the Closing, and (Eiv) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub nothing herein shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.47
(d) Parent shall have the right to substitute the net cash proceeds received Buyer will promptly, upon request by Parent after the date hereof Seller, reimburse Seller for all reasonable out-of-pocket costs and prior to the Closing from consummated offerings or other incurrences of debt expenses (including notesreasonable attorneys’ fees) incurred by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation ofSeller, the Debt Commitment Letter, (w) Company or the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid Subsidiary in connection with the transactions cooperation of Seller, the Company and the Subsidiary contemplated by this AgreementSection 6.10(b). Buyer will indemnify and hold harmless Seller, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under , the Debt Commitment Letter have been reduced to zero Subsidiary and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the preceding sentence, the obligations arrangement of the Company Financing (including any action taken in accordance with this Section 6.10) and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid information used in connection with the transactions contemplated by this Agreement and all conditions precedent therewith. 6.11 R&W Policy. Prior to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent Buyer shall provide all funds required obtain the R&W Policy, and Seller agrees to effect reasonably cooperate with Buyer in connection therewith, provided that such R&W Policy will contain customary terms and conditions, including without limitation, the repayment insurer thereunder expressly waiving and agreeing not to pursue, directly or indirectly, any subrogation rights against the Seller or its Affiliates (other than in connection with fraud by Seller or its Affiliates) with respect to any claim made by any insured thereunder. From and after the issuance of all indebtedness under the Company Credit Agreement R&W Policy, Buyer shall not amend the R&W Policy in full any manner adverse to Seller without the Seller’s prior written consent or which would otherwise give the insurer thereunder a right to pursue, directly or indirectly, any subrogation rights against Seller or its Affiliates (other than in accordance connection with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s fraud by Seller or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Black Box Corp)
Financing. (a) Subject Unless, and to the terms extent, Buyer shall have demonstrated to the reasonable satisfaction of Seller that Buyer shall have sufficient cash from other sources (including by reason of capital markets, securities or other financing transactions) available to satisfy its cash payment obligations under this Agreement, from and conditions after the execution of this Agreement, Parent Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made toto the Commitment Letter, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, amendment or modification or waiver (A) reduces the aggregate amount of the cash proceeds from Financing below the Debt Financing amount required together with the other sources to pay the Required Funding Amount or (B) imposes new or additional conditions to the initial funding or otherwise expands amends 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 Financing in a manner that would could reasonably be expected to (xI) delay or prevent the Closing from occurring prior to the Termination Date, (II) make the funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, materially less likely to occur or (yIII) adversely affect materially impact the ability of Parent Buyer to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (providedthereto. For the avoidance of doubt, that Parent but subject to the foregoing, Buyer may amend amend, supplement, modify or replace the Debt Commitment Letter as in effect at the date hereof (x) to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long who had not executed the Commitment Letter as of the date of this Agreement, (y) to increase the amount of indebtedness or (z) to replace all or a portion of the facility committed under the Commitment Letter as in effect as of the date hereof with one or more new facilities under such action would not reasonably be expected to delay Commitment Letter or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of under any new commitment letter or facility (any such amendmentnew commitment or facility, modification or replacement.
(b) Parent shalla “Replacement Facility”); provided, and that the terms of such Replacement Facility shall cause its Affiliates and Representatives to, use its reasonable best efforts comply with clauses (A) and (B) above. Promptly following the execution of a Replacement Facility by Buyer, Buyer shall notify the Seller to maintain such effect and shall promptly provide a fully executed copy of such Replacement Facility and any related agreements (which may be redacted in effect a customary manner). For purposes of this Agreement, (1) the Debt term “Financing” shall be deemed to include the financing contemplated by the Commitment Letter (provided that the Debt Commitment Letter may be as amended, supplemented, replaced, modified or waived as provided in replaced pursuant to this Section 6.13)6.23 (including any Replacement Facility, (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt any Alternative Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (BSection 6.23(d), such breach any offering or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences sale of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) equity securities the proceeds of such debt offerings or other incurrences have been received by Parent in cashwhich are intended to be used to satisfy the obligations under this Agreement), (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than2) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (term “Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question as may be amended, modified or replaced pursuant to this Section 6.23, any commitment letters with respect to any Replacement Facility, and each New Debt Commitment Letter any commitment letters with respect to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectAlternative Financing.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
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Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable or proper to arrange and obtain the proceeds of the Debt Financing on the terms and conditions described in the Debt Commitment Letter prior to the date upon which the Merger is required to be consummated pursuant to the terms thereof (hereof, including any “market flex” provisions) including by using its reasonable best efforts to seek (i) maintain in effect the Debt Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) consistent with the terms and conditions contained in the Debt Commitment Letter (including, as necessary, the “flex” provisions contained in the Redacted Fee Letter and any amendment or modification permitted under clause (b) below)), or on other terms that are acceptable to Parent and Merger Sub in their sole discretion and would not reasonably be expected to materially delay the Closing or adversely affect the ability of Parent and Merger Sub to consummate the transactions contemplated hereby, (iii) satisfy on a timely basis all conditions under its control in the Debt Commitment Letter and the Definitive Agreements and comply with its obligations under the Debt Commitment Letter and the Definitive Agreements and (iv) enforce its rights under the Debt Commitment Letter in and the event of a breach thereof by the financing provider(sDefinitive Agreements.
(b) thereunder. Parent shall not, and shall not permit Merger Sub to, without the Company’s prior written consentconsent of the Company (not to be unreasonably withheld, conditioned or delayed): (i) permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter or the Definitive Agreements if such amendment, supplement, replacement, modification or waiver (A) reduces adds new (or modifies any existing) conditions to the aggregate amount consummation of the cash proceeds from all or any portion of the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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) prevent, delay or prevent impede the funding in full consummation of the Merger, the Debt Financing or the other transactions contemplated by this Agreement, (or satisfaction B) reduces the amount of the conditions to Financing below the Debt Financing) on Merger Amounts at the Closing Date, or (yC) adversely affect affects the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (providedDefinitive Agreements as so amended, that replaced, supplemented or otherwise modified, relative to the ability of Parent may amend to enforce its rights against the other parties to the Debt Commitment Letter as in effect on the date hereof; or (ii) terminate the Debt Commitment Letter or any Definitive Agreement. Parent shall promptly deliver to the Company copies of any such amendment, modification, waiver or replacement. For the avoidance of doubt, nothing herein shall prevent the Parent from replacing or amending the Debt Commitment Letter or Definitive Agreements in order to (w) add lead arrangers, bookrunners, syndication agents or replace similar entities which had not executed the Debt Commitment Letter as of the date hereof and to grant to such persons such approval rights as are customarily granted to additional lenders, lead arrangers, bookrunners, syndication agents or similar entities entities, so long as any such action addition would not reasonably be expected to prevent, delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability consummation of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) give effect to the proceeds of such debt offerings or other incurrences have been received by Parent market flex provisions in cashthe Redacted Fee Letter, (y) Parent promptly notifies the Company of such substitution modify titles, allocations and reduction fee sharing arrangements with respect to existing and additional Debt Financing Entities and (z) true, correct and complete copies increase the amount of each material amendment or modification to the Debt Commitment Letter relating thereto will Financing unless, in the case of this clause (z), Parent and each of its Subsidiaries would not be promptly provided Solvent after giving effect to such increase and the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations consummation of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have Merger.
(c) In the right to substitute commitments in respect of other financings for all or event that any portion of the Debt Financing from becomes unavailable, regardless of the same and/or reason therefor, Parent will use its reasonable best efforts as promptly as practicable to (i) obtain alternative debt financing sources so long as (in an amount sufficient, when taken together with the aggregate amount Cash Equity and the available portion of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement and all to pay the other Merger Amounts) on terms and conditions precedent not materially less favorable (taken as a whole) to funding of such financing are, in respect of certainty of funding, equivalent to Parent than the terms and conditions (or more favorable to the Company thantaken as a whole) the conditions precedent set forth in the Debt Commitment LetterLetter (taking into account any market “flex” terms) and (ii) promptly notify the Company of such unavailability and the reason therefor; provided, that, in no event shall Parent and Merger Sub be obligated to supplement accept or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each pursue any such alternative financing commitment if it is materially less favorable (taken as a whole) to Parent than the terms and conditions (taken as a whole) set forth in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) taking into account any reference in this Agreement to the market “Debt Commitment Letterflex” shall be deemed to include the Debt Commitment Letter which terms). If any alternative financing is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the immediately preceding sentence, Parent shall use its reasonable best efforts to obtain, and when obtained, provide the Company Credit Agreementwith a copy of, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained hereina new financing commitment that provides for such alternative debt financing, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.Parent shall
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Financing. (a) Subject to the terms and conditions of this Agreement, Parent Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant Financing Letter, after giving effect to the market flex terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Fee Letter, and shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made toto (other than to amend the Financing Letter to add lenders, lead arrangers, book runners, syndication agents or similar entities who had not executed the Financing Letter as of the date of this Agreement), or any waiver of any provision or remedy under, the Debt Commitment Financing Letter or the Fee Letter, if such amendment, supplement, replacement, modification or waiver (Ai) reduces the aggregate amount of the cash proceeds from the Debt Financing or (Bii) imposes new or additional conditions to the initial funding or other terms or otherwise expands expands, amends or modifies any of the conditions to the receipt of the Debt Financing, Financing or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter terms in a manner that would reasonably be expected to (x) delay or prevent the Closing (y) make the timely funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, Financing less likely to occur or (yz) adversely affect impact the ability of Parent Buyer to enforce its rights against the other parties to the Debt Commitment Financing Letter or the definitive agreements with respect thereto (thereto; provided that Buyer shall have the right to substitute other financing for all or any portion of the Financing from the same and/or alternative financing sources; provided, further, that Parent may amend such substitution shall only be permitted if (i) the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action terms thereof would not be reasonably expected to delay or prevent the Closing or make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur and (ii) the conditions to the Financing set forth in the Financing Letter would not be expanded or modified in a manner that would reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of provided, still further, that any such amendmentsubstitute financing shall not obligate any of Seller or its Affiliates (including the Subsidiary) as a surety, modification guarantor or replacementindemnitor or to extend credit to any Person. Any reference in this Agreement to (A) “Financing,” shall include the financing contemplated by the Financing Letter as amended or modified in compliance with this Section 6.9(a) and (B) “Financing Letter,” and “Fee Letter” shall include such documents as amended or modified in compliance with this Section 6.9(a).
(b) Parent shall, and Buyer shall cause its Affiliates and Representatives to, use its reasonable best efforts (Ai) to maintain in effect the Debt Commitment Financing Letter (provided that in accordance with the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)terms and subject to the conditions thereof, (Bii) to negotiate and enter into all definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Financing Letter, including the market flex provisions in the Fee Letter, and (Ciii) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to such definitive agreements and consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent Buyer shall keep the Company informed on a current basis and in reasonable detail Seller reasonably apprised of the status of its efforts the Financing and developments with respect thereto (including giving Seller prompt notice of any material change with respect to arrange the Debt such Financing, and, promptly following request by the Company, ) and shall provide to the Company Seller copies of all executed Debt Financing Agreements.
(c) material definitive documents related to the Financing. Without limiting the generality of the foregoing, Parent Buyer agrees to notify the Company Seller promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (ix) the Debt Commitment Financing Letter is shall expire or be terminated for any reason, (iiy) Parent becomes aware any of any breach or default (A) by any Financing Source party the other parties to the Debt Commitment Financing Letter or any Debt Financing Agreement or (B) any other notify Buyer that such party no longer intends to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter provide financing on the terms set forth therein. Parent therein or (z) to Buyer’s knowledge (without a requirement of due inquiry), any of the other parties to the Financing Letter is or is alleged to be in breach or default thereunder.
(c) To the extent necessary to complete the transactions contemplated hereby, Buyer shall promptly provide any information reasonably requested use its reasonable best efforts to cause the parties providing Financing to fund on the Closing Date the Financing required to consummate the transactions contemplated hereby and the other transactions contemplated by the Company relating Financing Letter, including by taking enforcement action, if all conditions in the Financing Letter and all conditions to any circumstances referred to Closing contained in this Section 6.13(c). Parent shall notAgreement are satisfied or waived, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably upon funding will be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financingsatisfied.
(d) Parent If the Financing Letter shall have be terminated or modified in a manner materially adverse to Buyer, if the right to substitute Financing Letter shall be materially breached or repudiated by the net cash proceeds received by Parent after the date hereof and prior other parties to the Closing from consummated offerings Financing Letter, or other incurrences of debt (including notes) by Parent for all or if any portion of the Debt Financing by reducing commitments under becomes unavailable on the Debt Commitment Letter; provided that terms and conditions contemplated in the Financing Letter (vother than as a result of obtaining substitute debt financing in accordance with Section 6.9(a)) (such offering or other incurrence of debt does event, an “Original Financing Failure”), Buyer shall use its reasonable best efforts to arrange promptly to obtain alternative financing from alternative sources on terms and conditions not result less favorable to Buyer than those contained in a breach or default under, or violation of, the Debt Commitment Letter, (w) Financing Letter and the aggregate Fee Letter and in an amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification at least equal to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentenceFinancing or such unavailable portion thereof, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of case may be (the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Alternate Financing”). True, correct and complete copies of each alternative to obtain a new financing commitment in letter with respect of to such Alternative Debt Alternate Financing (each, a the “New Debt Commitment Financing Letter”), together with all related fee letters and associated engagement letters which shall replace the existing Financing Letter, provided that any such Alternate Financing shall not obligate any of Seller or its Affiliates as a surety, guarantor or indemnitor or to extend credit to any Person (solely the terms described in this proviso “Prohibited Alternate Terms”). Buyer shall not execute a New Financing Letter or consummate any Alternate Financing, without the case written consent of the fee letterSeller, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, if (i) any reference the terms of the New Financing Letter or Alternate Financing are, in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.aggregate,
Appears in 1 contract
Financing. (a) Subject to the terms Purchaser shall and conditions of this Agreement, Parent shall use its reasonable best efforts to cause each of its Subsidiaries to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things reasonably necessary, proper or advisable to obtain funds sufficient to fund the Financing Amounts on or prior to the date on which the Sale is required to be consummated pursuant to the terms hereof. In furtherance and not in limitation of the foregoing, Purchaser shall take, or cause to be taken, all reasonable actions and do, or cause to be done, all things reasonably necessary, proper or advisable to arrange and obtain the Debt proceeds of the Financing on the terms and subject only to the conditions described in the Debt Commitment Letter as promptly as possible but in any event prior to the date on which the Sale is required to be consummated pursuant to the terms thereof hereof, including by (including any i) maintaining in effect the Commitment Letter, (ii) negotiating and entering into definitive agreements with respect to the Financing (the “market Definitive Agreements”) consistent with the terms and conditions contained in the Commitment Letter (including, as necessary, the “flex” provisionsprovisions contained therein) including using and without any Prohibited Modification, (iii) satisfying on a timely basis all conditions in the Commitment Letter and the Definitive Agreements and complying with its obligations thereunder and (iv) taking all reasonable best efforts to seek action within its control to enforce its rights under the Debt Commitment Letter in and the event Definitive Agreements.
(b) Neither Purchaser nor any of a breach thereof by the financing provider(s) thereunder. Parent shall notits Subsidiaries shall, without the Company’s prior written consentconsent of Parent: (i) permit, permit consent to or agree to any amendment, replacement, supplement, replacement termination or modification to be made to, or any waiver of of, any provision or remedy under, the Debt Commitment Letter or the Definitive Agreements if such amendment, replacement, supplement, replacementtermination, modification modification, waiver or waiver remedy (A) adds new (or adversely modifies any existing) conditions to the consummation of all or any portion of the Financing, (B) reduces the aggregate principal amount of the cash proceeds from Financing below the Debt Financing or amount (Btaking into account all other sources of proceeds) imposes new or additional conditions necessary to fund the initial funding or otherwise expands any payment of the conditions to the receipt of the Debt FinancingClosing payments, 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (yC) adversely affect affects the ability of Parent Purchaser to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto Definitive Agreements as so amended, replaced, supplemented or otherwise modified or (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 D) could otherwise reasonably be expected to prevent, impede or delay the consummation of the Transactions (the effects described in clauses (A) through (D), collectively, the “Prohibited Modifications”); or prevent (ii) terminate or cause the Closing)termination of the Commitment Letter or any Definitive Agreement. Parent Purchaser shall promptly deliver to the Company true, complete and correct Parent copies of any such amendment, replacement, supplement, termination, modification or replacementwaiver to the Commitment Letter and/or Definitive Agreements.
(bc) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding any portion of the Debt Financing will bebecomes unavailable, satisfiedregardless of the reason therefor, Purchaser shall (i) notify as soon as reasonably practicable Parent in writing of such unavailability and Sub shall the reason therefor and (ii) use reasonable best efforts, and cause each of its Subsidiaries to use their reasonable best efforts, to arrange and obtain, as promptly as practicable following the occurrence of such event, alternative financing for any such unavailable portion from the same or alternative sources (the “Alternative Financing”) in an amount sufficient, when taken together with the available portion of the Financing to consummate the transactions contemplated by this Agreement and to pay the Financing Amounts and, without limiting the foregoing, shall use reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt such Alternative Financing to comply not include any Prohibited Modifications. Purchaser shall provide Parent with their obligations under prompt oral and written notice of any actual or threatened breach, default, cancellation, termination or repudiation by any party to the Debt Commitment Letter or any Definitive Agreement and definitive a copy of any written notice or other written communication from any Lender or other financing agreements and source with respect to fund on any actual or before threatened breach, default, cancellation, termination or repudiation by any party to the Effective Time the Debt FinancingCommitment Letter or any Definitive Agreement of any provision thereof. Parent Purchaser shall keep the Company Parent reasonably informed on a current basis and in reasonable detail of the status of its efforts to arrange consummate the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in including any event within two (2) Business Days, 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 breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Alternative Financing.
(d) Parent The foregoing notwithstanding, compliance by Purchaser with this Section 5.20 shall have the right not relieve Purchaser of its obligations to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement and all conditions precedent to funding whether or not the Financing or any Alternative Financing is available. To the extent Purchaser obtains Alternative Financing or amends, replaces, supplements, terminates, modifies or waives any of such financing arethe Financing, in respect of certainty of fundingeach case pursuant to this Section 5.20 and without any Prohibited Modification, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement references to the “Debt Financing,” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Financing Parties,” “Commitment Letter” and “Definitive Agreements” (and other like terms in this Agreement) shall be deemed to include refer to such Alternative Financing, the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger commitments thereunder and the transactions contemplated by this Agreementagreements with respect thereto, or the Financing as so amended, replaced, supplemented, terminated, modified or waived.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Subsidiary shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms terms, and conditions described subject to the conditions, set forth in the Debt Commitment Letter pursuant Financing Letters. Parent and Merger Subsidiary shall be permitted to the terms thereof amend or modify, or waive any provision under, or supplement or replace in whole or in part (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under through co-investments or by financing from one or more additional parties), the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Financing Letters; provided, that Parent and Merger Subsidiary shall notnot effect any such amendment, modification, waiver, supplement or replacement without the Company’s prior written consent, permit any amendment, supplement, replacement or modification consent (not to be made tounreasonably withheld, conditioned or any waiver of any provision under, the Debt Commitment Letter delayed) if such amendment, supplementmodification, waiver, supplement or replacement, modification or waiver :
(Ai) reduces (or could have the effect of reducing) the aggregate amount of the cash proceeds from the Debt Financing or Financing;
(Bii) imposes new or additional conditions to the initial funding or otherwise expands 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 Financing Letters, in each case, in a manner that would reasonably be expected to (x) delay or prevent or make materially less likely the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, ; or (yiii) otherwise adversely affect impact the ability of Parent or Merger Subsidiary to enforce its their rights against other parties to the Debt Commitment Letter Financing Letters or the any definitive agreements with respect thereto (provided, that Parent may amend or otherwise to timely consummate the Debt Commitment Letter to add or replace lendersFinancing and the Merger, lead arrangersin the case of (i) through (iii) above, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of in any such amendment, modification or replacementmaterial respect.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) Subject to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable of this Agreement, each of Parent and Merger Subsidiary shall use its commercially reasonable best efforts to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of)Equity Financing on the terms, and 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 Debt Financing at the Closing set forth therein that are within its control or subject to its influence andthe conditions, upon satisfaction of the conditions set forth in the Debt Equity Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing AgreementsLetters.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained hereinin this Agreement, Parent’s obligations hereunder are not subject nothing contained in this Agreement shall require, and in no event shall the reasonable best efforts of Parent or Merger Subsidiary be deemed or construed to a condition regarding Parent’s require, either Parent or Merger Subsidiary to (i) pay any fees or other amounts related to the Debt Financing in excess of those contemplated by the Debt Financing Letters or (ii) threaten, commence or pursue litigation, arbitration or other adversarial proceedings against any financing source (whether of debt or equity) or affiliate thereof. Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges and agrees that it (i) derives no contractual rights, whether as third party beneficiary or otherwise, under the Debt Financing Letters, Equity Commitment Letters or any debt or equity financing document related to the Debt Financing and Equity Financing and shall not be entitled to enforce any such Debt Financing Letters or Equity Commitment Letters or documents against any agent, arranger, bookrunner, lender, letter of its credit issuer or other financing party that is a party to any such Debt Financing Letters, Equity Commitment Letters or document (including, without limitation, GSO Capital Partners LP, PNC National Bank and their respective Affiliates’ obtaining funds ) (collectively, the “Financing Group”) and (ii) waives any claim (including, without limitation, any claim under contract, any claim in tort and any claim for specific performance) it may have against any member of the Financing Group with respect to consummate the failure of the Debt Financing or Equity Financing to close; provided that nothing contained in this sentence shall prevent the Company from enforcing any of the terms of this Agreement against the Parent or Merger and the transactions contemplated by this AgreementSubsidiary (including under Section 11.13).
Appears in 1 contract
Sources: Merger Agreement
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable or proper to arrange and obtain the Debt Financing as promptly as practicable on the terms and conditions described in the Debt Financing Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. provided that Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement and Merger Sub may replace or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from amend the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 which had not executed the Debt Financing Commitment as of June 7, 2007, or otherwise so long as such action replacement or amendment would not reasonably be expected adversely impact or delay in any material respect the ability of Parent or Merger Sub to delay consummate the transactions contemplated hereby or prevent the Closinglikelihood of the consummation of the transactions contemplated hereby). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its including using reasonable best efforts to (Ai) to maintain in effect the Debt Commitment Letter Financing Commitment, subject to the foregoing replacement and amendment rights, (provided that ii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub to obtaining the Debt Financing set forth in the Debt Financing Commitment Letter may be amended, supplemented, replaced, modified that are within their control (including by consummating the financing pursuant to the terms of the Equity Financing Commitments and by assisting in the syndication or waived as provided in this Section 6.13), marketing of the financing contemplated by the Debt Financing Commitment) and (Biii) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) thereto on the terms and conditions that are not materially less favorable contemplated by the Debt Financing Commitment or on other terms reasonably acceptable to Parent than those contained that would not adversely impact in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede any material respect the ability of the parties Parent or Merger Sub to consummate the Merger, all transactions contemplated hereby. Subject to the terms and conditions to receipt of contained herein and the full amount of the Debt 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 Annex A, at the Debt Commitment LetterShare Purchase Date, to consummate Parent shall draw down on the Offer Financing if the conditions in the Debt Financing at or prior Commitment relating to the Closinginitial funding of the Offer Financing are then satisfied (other than, (D) to comply in connection with its obligations under the Debt Commitment LetterFinancing, the availability of funding of any of the Equity Commitments). Subject to the terms and (E) to consummate conditions contained herein and the satisfaction of the conditions set forth in Section 7.1, at the Effective Date, Parent shall draw down on the Debt Financing at or prior to if the Effective Time. In the event that all applicable conditions precedent expressly set forth in the Debt Financing Commitment Letter have been orare then satisfied. Without limiting Parent’s obligations under this Section 6.13, upon funding if any portion of the Debt Financing will be, satisfiedbecomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, Parent and Sub shall use their its reasonable best efforts to enforce their rights under, arrange to obtain alternative financing from alternative sources on terms not materially less beneficial to Parent and cause Merger Sub in an amount sufficient to consummate the transactions contemplated by this Agreement 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 SourcesCommitments of which Parent or Merger Sub becomes aware, lenders and or any termination of the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt FinancingCommitments. 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, promptly following request by the Company, Financing and provide to the Company copies of all executed documents related to the Debt Financing Agreements(other than any ancillary documents subject to confidentiality agreements) to the Company.
(cb) Without limiting Prior to the foregoingClosing, Parent agrees to notify the Company promptlyshall provide to Parent and Merger Sub, and in any event within two (2) Business Days, 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 breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of cause its Affiliates Subsidiaries to, without and shall use its reasonable best efforts to cause the prior written consent of the Companyrespective officers, take any action or enter into any transaction that would reasonably be expected to materially impairemployees and advisors, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof including legal and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default underaccounting, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to, provide to Section 6.14 Parent and Merger Sub all cooperation reasonably requested in writing by Parent that is reasonably necessary or customary in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the business or operations of the Company and its Subsidiaries), including (i) participating in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) using commercially reasonable efforts to assist with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents necessary or customary in connection with the Financing, (iii) using commercially reasonable best efforts to furnish Parent and Merger Sub as promptly as reasonably practicable with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent in connection with the Debt Financing and customarily included in private placement memoranda relating to private placements under Rule 144A promulgated under the Securities Act to consummate the offering(s) of debt securities contemplated by the Debt Financing Commitments at the time during the Company’s fiscal year such offering(s) will be made as soon as such financial and other information becomes available, including all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act (other than Rule 3-10 of Regulation S-X and summary quarterly financial information and without giving effect to the executive compensation and related person disclosure rules related to SEC Release Nos. 33-8732A; 34-54302A; IC-27444A), including audits thereof to the extent so required (which audits shall no longer be unqualified) (all such information in effect. Furtherthis clause (iii), the “Required Information”), (iv) using reasonable best efforts to assist Parent shall have in procuring accountants’ comfort letters and consents, legal opinions, surveys and title insurance and other customary documentation required by the right Debt Financing Commitments, in each case as reasonably requested by Parent and, if reasonably requested by Parent or Merger Sub, to substitute commitments cooperate with and assist Parent or Merger Sub in respect obtaining such documentation and items, (v) using commercially reasonable efforts to provide monthly financial statements (excluding footnotes) within the time frame, and to the extent, the Company prepares such financial statements in the ordinary course of business, (vi) using reasonable best efforts to assist Parent in procuring the execution and delivery, as of the Effective Time, by the officers of the Surviving Corporation and its Subsidiaries of any customary pledge and security documents, other financings for all definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Parent (including a certificate of the Chief Financial Officer of the Surviving Corporation or any portion Subsidiary 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), (vii) taking all actions to the extent reasonably requested by Parent necessary to (A) permit the prospective lenders involved in the Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, and (viii) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent in connection with the consummation of the Debt Financing from by Surviving Corporation and its Subsidiaries immediately following the same and/or alternative financing sources so long as the aggregate amount Effective Time; provided that none of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient Company or any of its Subsidiaries shall be required to pay all amounts required to be paid any commitment or other similar fee or incur any other cost or expense that is not simultaneously reimbursed by Parent in connection with the transactions contemplated Debt Financing prior to the Effective Time. Parent shall, promptly upon request by this Agreement the Company, reimburse the Company for all reasonable documented out of pocket costs and expenses incurred by the Company or its Subsidiaries in connection with such cooperation and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all conditions precedent to funding liabilities, losses, damages, claims, expenses, interest, judgments and penalties suffered or incurred by them in connection with the arrangement of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing and any information utilized in connection therewith (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in other than information provided by the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, Company or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full Subsidiaries in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iiiterms hereof).
(fc) Notwithstanding anything For purposes of this Agreement, “Marketing Period” shall mean the first period of 20 consecutive days after the Initiation Date (A) throughout and on the last day of which (1) Parent and its Financing sources shall have the Required Information and (2) nothing has occurred and no condition exists that would cause any of the conditions set forth in clauses (c) and (d) of Annex A to fail to be satisfied assuming such conditions were applicable any time during such 20-consecutive-day period, and (B) throughout and on the last day of which the conditions set forth in Section 7.1 shall be satisfied; provided that (w) the Marketing Period shall end on any earlier date that is the date on which the Debt Financing to be drawn on the Closing Date is consummated; (x) the Marketing Period occurs either entirely before or entirely after the period from August 17 through September 3, 2007; (y) the Marketing Period shall not be deemed to have commenced if, prior to the contrary completion of the Marketing Period, (A) Ernst & Young LLP shall have withdrawn its audit opinion with respect to any financial statements contained hereinin the Required Financial Information, in which case the Marketing Period will not be deemed to commence at the earliest unless and until a new unqualified audit opinion is issued with respect to the consolidated financial statements for the applicable periods by Ernst & Young LLP or another independent registered accounting firm reasonably acceptable to Parent’s obligations hereunder are not subject , (B) the Company shall have announced any intention to a condition regarding Parent’s or restate any of its Affiliates’ obtaining funds financial information included in the Required Information or that any such restatement is under consideration or may be a possibility, in which case the Marketing Period will not be deemed to consummate commence at the Merger earliest unless and until such restatement has been completed and the transactions contemplated Company’s SEC Reports have been amended or the Company has announced that it has concluded that no restatement shall be required in accordance with GAAP, (C) the Company shall have been delinquent in filing any report with the SEC, in which case the Marketing Period will not be deemed to commence at the earliest unless and until all such delinquencies have been cured or (D) if the Company has received any material accounting comments from the staff of the SEC on its Annual Reports on Form 10-K or Quarterly Reports on Form 10-Q, as such may be amended, the Marketing Period will be deemed not to commence at the earliest unless and until all such material accounting comments have been satisfactorily resolved with the SEC staff; and (z) if the financial statements included in the Required Information that is available to Parent on the first day of any such 20-consecutive-day period would not be sufficiently current on any day during such 20-consecutive-day period to permit (i) a registration statement using such financial statements to be declared effective by this Agreementthe SEC on the last day of the 20-consecutive-day period or (ii) the Company’s independent registered accounting firm to issue a customary comfort letter to purchasers (in accordance with its normal practices and procedures) on the last day of the 20-consecutive-day period, then a new 20-consecutive-day period shall commence upon Parent receiving updated Required Information that would be sufficiently current to permit the actions described in (i) and (ii) on the last day of such 20-consecutive-day period.
Appears in 1 contract
Sources: Merger Agreement (Biomet Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its commercially reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, advisable necessary to consummate the Financing or proper to arrange and obtain the Debt any Substitute Financing (as defined below) on the terms terms, and conditions described in the Debt Commitment Letter pursuant subject to the terms thereof conditions (including any “market flex” provisions) set forth in the Commitment Letter, including using its commercially reasonable best efforts to seek (i) comply with and maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to enforce its rights under the Debt Financing on the terms and conditions (including “market flex” provisions) contained in the Commitment Letter (or with conditions no less favorable to Parent than the conditions set forth in the event of Commitment Letter), (iii) satisfy on a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of timely basis all the conditions to the receipt Financing and the definitive agreements related thereto (other than any condition as to which the failure to be so satisfied is a result of the Debt Financing, or otherwise expands, amends or modifies any other provision of Company’s failure to furnish the Debt Company Financial Information that is Compliant and information required to be furnished by the Company under Section 6.15(c)) and (iv) comply with Parent’s and Merger Sub’s obligations under the Commitment Letter in a manner and not take or fail to take any action that would reasonably be expected to (x) prevent or delay or prevent the funding in full availability of the Debt Financing (or satisfaction of on the terms and conditions contemplated by the Commitment Letter. In the event that all conditions to the Debt FinancingCommitment Letter have been satisfied (other than the consummation of the Offer) on or, upon funding shall be satisfied, Parent shall use its commercially reasonable best efforts to cause the Closing Date, Financing Parties to fund at or (y) adversely affect the ability of Parent to enforce its rights against other parties prior to the Debt Acceptance Time the Financing, to the extent the proceeds thereof are required to consummate the Offer, the Merger and the other transactions contemplated hereby. Parent shall, after obtaining Knowledge thereof, give the Company written notice of any (A) breach or default by a Financing Party or any party to the Commitment Letter or any definitive document related to the Financing or (B) withdrawal, repudiation or termination of the Financing by the Financing Parties. Parent shall keep the 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. In the event that new commitment letters are entered into in accordance with respect thereto (providedany amendment, that Parent may amend replacement, supplement or other modification of the Debt Commitment Letter permitted pursuant to add or replace lendersthis Section 6.15, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably new commitment letters shall be expected deemed to delay or prevent be a part of the Closing)“Financing” and deemed to be the “Commitment Letter” for all purposes of this Agreement. Parent shall promptly deliver to the 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 Parent on the terms and conditions set forth therein, and such funds are reasonably required to consummate the Offer and the Merger and the other transactions contemplated hereby, Parent shall as promptly as practicable following the occurrence of such event (x) notify the Company in writing thereof, (y) use reasonable best efforts to obtain substitute financing (on terms and conditions that are not materially less favorable to Parent and Merger Sub, taken as a whole, than the terms and conditions as set forth in the Commitment Letter, taking into account any “market flex” provisions thereof) sufficient to enable Parent to consummate the Offer and the Merger and the other transactions contemplated hereby in accordance with its terms (the “Substitute Financing”) and (z) use reasonable best efforts to obtain a new financing commitment letter that provides for such Substitute Financing and, promptly after execution thereof, deliver to the Company true, complete and correct copies of the new commitment letter and the related fee letters (in redacted form reasonably satisfactory to the Persons providing such Substitute Financing) and related definitive financing documents with respect to such Substitute Financing. Upon obtaining any commitment for any such amendmentSubstitute Financing, modification or replacementsuch financing shall be deemed to be a part of the “Financing” and any commitment letter for such Substitute Financing shall be deemed the “Commitment Letter” for all purposes of this Agreement.
(b) Parent shall pay, or cause to be paid, as the same shall become due and payable, all fees and other amounts that become due and payable under the Commitment Letter or the related fee letters.
(c) The Company shall, and shall cause each of its Affiliates and Representatives Subsidiaries to, and shall use its reasonable best efforts (A) to maintain in effect cause the Debt Commitment Letter (provided that the Debt Commitment Letter Company Representatives to, provide to Parent such cooperation and assistance, as may be amendedreasonably requested by Parent, supplementedwhich reasonable best efforts shall include:
(i) causing its management team, replacedwith appropriate seniority and expertise, modified including its senior executive officers, and external auditors to assist in preparation for and to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies, in each case, upon reasonable notice;
(ii) assisting with the syndication or waived other marketing of the Financing including, but not limited to, timely preparation of customary rating agency presentations, road show materials, bank information memoranda, credit agreements, prospectuses and bank syndication materials, offering documents, private placement memoranda and similar documents customarily required in connection with the Financing, including the marketing and syndication thereof, provided, that any such bank information memoranda, prospectuses and bank syndication materials, offering documents, private placement memoranda and similar documents shall contain disclosure and pro forma financial statements reflecting the Surviving Corporation and/or its Subsidiaries as provided the obligor;
(iii) furnishing Parent and Merger Sub and the Financing Parties, promptly following Parent’s or Merger Sub’s request, with all Company Financial Information, and assisting Parent and Merger Sub with Parent’s and Merger Sub’s preparation of pro forma financial information and projections;
(iv) assisting Parent and Merger Sub in this Section 6.13)obtaining corporate and facilities ratings in connection with the Financing;
(v) reasonably cooperating to permit the prospective lenders involved in the Financing to evaluate the Company’s current assets, (B) to negotiate cash management and enter into definitive agreements with respect accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements to the Debt Commitment Letter extent customary and reasonable for any lending facilities and otherwise reasonably facilitating the grant of a security interest in collateral and providing related lender protections (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable such grant to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt Financing at the Closing set forth therein that are within its control or be subject to its influence and, and only effective upon satisfaction occurrence of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, );
(vi) furnishing Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company Parties promptly, and in any event within two (2) at least five Business Days, if at any time Days prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (Bextent requested in writing and with specificity) any other party within 10 Business Days prior to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (BClosing Date), such breach or default would reasonably be expected with all documentation and other information required by Governmental Authorities with respect to affect the availability Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
(vii) taking all corporate actions, subject to the occurrence of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion earlier of the Debt Financing contemplated by Acceptance Time or the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information Effective Time, reasonably requested by Parent to permit the consummation of the Financing; provided that the Company relating Board shall not be required to enter into any circumstances referred resolutions or take similar action approving the Financing;
(viii) executing and delivering any customary pledge and security documents, credit agreements, ancillary loan documents and customary closing certificates and documents (in each case, subject to and only effective upon occurrence of the Effective Time) and assisting in this Section 6.13(c). preparing schedules thereto as may be reasonably requested by Parent shall not, nor shall it permit any or Merger Sub (including delivery of its Affiliates to, without a solvency certificate of the prior written consent Chief Financial Officer of the Company);
(ix) providing customary authorization letters authorizing the distribution of information to prospective lenders and containing a customary representation to the Financing Parties for the Financing that such information does not contain a material misstatement or omission and containing a customary representation (if accurate) to the Financing Parties that the public side versions of such documents, take if any, do not include material non-public information about the Company and its subsidiaries or its or their securities;
(x) causing accountants to consent to the use of their reports in any action material relating to the Financing; and
(xi) to the extent reasonably available and as applicable, providing all financial statements and other data reasonably required to be included therein, and all other data (including selected financial data) that the SEC would require in a registered offering or enter into any transaction that would reasonably be expected necessary for an investment bank to materially impair, delay or prevent consummation of all or any portion of receive customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with a registered offering by the Debt FinancingCompany.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained hereinin this Agreement: (i) nothing in this Agreement shall require any such cooperation to the extent that it would (A) require the Company or the Company Representatives, Parent’s obligations hereunder as applicable, to pay any commitment or other fees or reimburse any expenses that are not subject contingent upon the Effective Time or incur any liability or give any indemnities that are not contingent upon the Effective Time or (B) unreasonably interfere with the ongoing business or operations of the Company and its Subsidiaries and (ii) nothing in this Agreement shall require Parent or Merger Sub to, except as specified in Section 2.2(a), consummate the Offer any earlier than the final day of the Marketing Period. The Company hereby consents to the use of all of the Company’s and its Subsidiaries’ logos in connection with the Financing; provided, that such logos are used solely in a condition regarding Parent’s manner that is not intended to harm or disparage the Company or any of its Affiliates’ obtaining funds Affiliates or their reputation or goodwill. All non-public or otherwise confidential information regarding the Company or its Subsidiaries obtained by Parent or its officers, directors, employees, agents and representatives and their respective successors and assigns, pursuant to consummate this Section 6.15 shall be kept confidential in accordance with the Merger and Confidentiality Agreement or customary confidential undertakings in connection with the transactions contemplated by this AgreementFinancing.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant Financing Letter, after giving effect to the market flex terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Fee Letter, and shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made toto (other than to amend the Financing Letter to add lenders, lead arrangers, book runners, syndication agents or similar entities who had not executed the Financing Letter as of the date of this Agreement), or any waiver of any provision or remedy under, the Debt Commitment Financing Letter or the Fee Letter, if such amendment, supplement, replacement, modification or waiver (Ai) reduces the aggregate amount of the cash proceeds from the Debt Financing or (Bii) imposes new or additional conditions to the initial funding or other terms or otherwise expands expands, amends or modifies any of the conditions to the receipt of the Debt Financing, Financing or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter terms in a manner that would reasonably be expected to (x) delay or prevent the Closing (y) make the timely funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, Financing less likely to occur or (yz) adversely affect impact the ability of Parent Buyer to enforce its rights against the other parties to the Debt Commitment Financing Letter or the definitive agreements with respect thereto (thereto; provided that Buyer shall have the right to substitute other financing for all or any portion of the Financing from the same and/or alternative financing sources; provided, further, that Parent may amend such substitution shall only be permitted if (i) the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action terms thereof would not be reasonably expected to delay or prevent the Closing or make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur and (ii) the conditions to the Financing set forth in the Financing Letter would not be expanded or modified in a manner that would reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of provided, still further, that any such amendmentsubstitute financing shall not obligate any of Seller or its Affiliates (including the Subsidiary) as a surety, modification guarantor or replacementindemnitor or to extend credit to any Person. Any reference in this Agreement to (A) “Financing,” shall include the financing contemplated by the Financing Letter as amended or modified in compliance with this Section 6.9(a) and (B) “Financing Letter,” and “Fee Letter” shall include such documents as amended or modified in compliance with this Section 6.9(a).
(b) Parent shall, and Buyer shall cause its Affiliates and Representatives to, use its reasonable best efforts (Ai) to maintain in effect the Debt Commitment Financing Letter (provided that in accordance with the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)terms and subject to the conditions thereof, (Bii) to negotiate and enter into all definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Financing Letter, including the market flex provisions in the Fee Letter, and (Ciii) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to such definitive agreements and consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent Buyer shall keep the Company informed on a current basis and in reasonable detail Seller reasonably apprised of the status of its efforts the Financing and developments with respect thereto (including giving Seller prompt notice of any material change with respect to arrange the Debt such Financing, and, promptly following request by the Company, ) and shall provide to the Company Seller copies of all executed Debt Financing Agreements.
(c) material definitive documents related to the Financing. Without limiting the generality of the foregoing, Parent Buyer agrees to notify the Company Seller promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (ix) the Debt Commitment Financing Letter is shall expire or be terminated for any reason, (iiy) Parent becomes aware any of any breach or default (A) by any Financing Source party the other parties to the Debt Commitment Financing Letter or any Debt Financing Agreement or (B) any other notify Buyer that such party no longer intends to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter provide financing on the terms set forth therein. Parent therein or (z) to Buyer’s knowledge (without a requirement of due inquiry), any of the other parties to the Financing Letter is or is alleged to be in breach or default thereunder.
(c) To the extent necessary to complete the transactions contemplated hereby, Buyer shall promptly provide any information reasonably requested use its reasonable best efforts to cause the parties providing Financing to fund on the Closing Date the Financing required to consummate the transactions contemplated hereby and the other transactions contemplated by the Company relating Financing Letter, including by taking enforcement action, if all conditions in the Financing Letter and all conditions to any circumstances referred to Closing contained in this Section 6.13(c). Parent shall notAgreement are satisfied or waived, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably upon funding will be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financingsatisfied.
(d) Parent If the Financing Letter shall have be terminated or modified in a manner materially adverse to Buyer, if the right to substitute Financing Letter shall be materially breached or repudiated by the net cash proceeds received by Parent after the date hereof and prior other parties to the Closing from consummated offerings Financing Letter, or other incurrences of debt (including notes) by Parent for all or if any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.becomes unavailable
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent The Purchaser shall use its reasonable best efforts to take, take (or cause to be taken, ) all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain consummate the Debt Financing on or prior to the Closing Date on the terms and conditions described in the Debt Commitment Letter. The Purchaser will not permit any termination, amendment or other modification (other than amendments or joinders to add additional lenders, arrangers, bookrunners, agents, managers, or other Debt Financing Sources in the manner contemplated by the terms of the Debt Commitment Letter (as in effect on the date of this Agreement)) to be made to, or any waiver of any provision or remedy pursuant to, the Debt Commitment Letter, in each case, without the Seller’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) if such amendment, modification or waiver would, or would reasonably be expected to: (A) reduce the aggregate amount of the net proceeds of the Committed Debt Financing; (B) impose new or additional conditions or contingencies applicable to the funding of the Debt Financing; (C) otherwise expand, amend or modify any of the conditions to the receipt of the Committed Debt Financing or any other terms to the Committed Debt Financing in a manner that, in each case with respect to this clause (C), would reasonably be expected to (I) delay in any material respect or prevent the occurrence of the Closing or (II) make the satisfaction of the conditions to obtaining the Committed Debt Financing materially less likely to occur in any respect; or (D) adversely impact the ability of the Purchaser or any Seller, as applicable, to enforce its rights against the Debt Financing Sources.
(b) The Purchaser shall: (i) upon the request of the Seller, keep the Seller informed on a reasonably current basis in reasonable detail of all material activity concerning the Debt Financing (including the status of its efforts to obtain the Debt Financing); and (ii) promptly (and no later than two (2) Business Days after such execution) provide the Seller with copies of all executed amendments, joinders, modifications or replacements of the Debt Financing Commitment (it being understood that any amendments, joinders, modifications or replacements shall only be as permitted herein). Without limiting the generality of the foregoing, the Purchaser shall promptly (and in any event, within two (2) Business Days) notify the Seller in writing: (A) of any actual or threatened (in writing) withdrawal, repudiation, termination, material breach or material default (or any event or circumstance that could reasonably be expected to give rise to any withdrawal, repudiation, termination, material breach or material default) by any party to the Debt Financing Commitment of which the Purchaser becomes aware; and (B) if for any reason the Purchaser at any time reasonably believes it will not be able to timely obtain all or any material portion of the Committed Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Financing Commitment.
(c) The Purchaser acknowledges and agrees that obtaining the Debt Financing is not a condition to the Closing. If any or all of the Debt Financing has not been obtained, the Purchaser shall continue to be obligated to consummate the transactions on the terms contemplated by this Agreement and the Ancillary Agreements and subject only to the satisfaction or waiver of the conditions to Closing set forth in Section 8.02 and to the Purchaser’s rights under Section 10.01, regardless of whether the Purchaser has complied with all of its other obligations with respect to the Debt Financing under this Agreement (including its obligations under this Section 5.23). Subject to the terms thereof and conditions of this Agreement (including any “market flex” provisionsincluding, without limitation, the limited right of the Purchaser to amend the Debt Commitment Letter subject to the limitations set forth in clause (a) including using its reasonable best efforts above), the Purchaser agrees to seek to enforce exercise its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions Failure Event which the Purchaser determines to not be in accordance with the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision terms of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing DateLetter. The Purchaser will fully pay, or (y) adversely affect the ability of Parent cause to enforce its rights against be fully paid, all commitment or other parties fees arising pursuant to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacementwhen they become due.
(bd) Parent shallFrom the date of this Agreement to the earlier to occur of the Closing Date and the date this Agreement is terminated in accordance with its terms, the Seller shall use its commercially reasonable efforts to, and shall use its commercially reasonable efforts to cause its Affiliates and Representatives the Acquired Companies to, use its reasonable best efforts provide, as promptly as practicable, such cooperation as is (Ax) to maintain in effect reasonably requested by the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) Purchaser to satisfy on a timely basis (basis, the Purchaser’s or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its Affiliates’ obligations under the Debt Commitment Letter, and including (Ewithout limitation) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth out in the Debt Commitment Letter have been or, upon funding applicable to the Purchaser for obtaining the financing and (y) reasonably requested by the Purchaser or its Affiliates in connection with the arrangement (and consummation) of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, andincluding using commercially reasonable efforts to: (i) furnish to the Purchaser and the Debt Financing Entities with financial and other information or documents related to the Acquired Companies and necessary for the preparation of customary bank information memoranda, promptly following request lender presentations, prospectuses, offering memorandums and road show presentations and similar documents relating to the Debt Financing; provided that neither Seller not the Acquired Companies shall be required to create any financial information or other documents not currently in the possession of Seller and its Affiliates or the Acquired Companies; (ii) upon reasonable prior notice and at reasonable times during regular business hours and at locations to be mutually agreed, cause members of management of the Acquired Companies to participate in a reasonable number of meetings, due diligence sessions (including accounting due diligence sessions), drafting sessions, and conference calls and presentations with prospective lenders, investors, underwriters, placement agents and initial purchasers, and a reasonable number of sessions with the ratings agencies, in each case in connection with the Debt Financing and only to the extent customarily needed for financings of the types contemplated by the CompanyDebt Financing; (iii) cause members of management of the Acquired Companies to reasonably (A) assist the Purchaser in its preparation of any bank information memoranda, provide prospectuses, offering memorandums, roadshow presentations and related presentations to the Company copies extent customarily needed for financings of all executed the types contemplated by the Debt Financing Agreements.
and assist in identifying any portion of the information set forth in any of the foregoing that would constitute material, non-public information, (cB) Without limiting deliver customary authorization letters with respect to the foregoingbank information memoranda; provided that any related materials shall contain customary exculpatory provisions in favor of the Seller, Parent agrees its Affiliates and their respective Representatives, and (C) assist the Purchaser in its preparation of materials for rating agency presentations, provided that any such bank information memoranda, lender presentations, prospectuses, offering memorandums, roadshow presentations or similar documents that includes disclosure and financial statements with respect to notify the Company promptlyBusiness shall only reflect the Purchaser as the obligor(s) and no such bank information memoranda, lender presentations, prospectuses, offering memoranda, road show presentations or materials shall be issued by the Seller or the Acquired Companies, and in any event within two each case of clauses (A) through (C), only to the extent customarily needed for financings of the types contemplated by the Debt Financing, it being agreed that information and assistance will not be required relating to (1) the proposed aggregate amount of debt and equity financing, together with assumed interest rates, dividends (if any) and fees and expenses relating to the incurrence of such debt or equity financing, (2) 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 connection with any Debt Financing or (3) any financial information related to the Purchaser or any of its Subsidiaries or any adjustments that are not directly related to the acquisition of the Acquired Companies by the Purchaser; (iv) provide the Purchaser, at least three (3) Business DaysDays prior to Closing, if all documentation and other information with respect to the Acquired Companies as shall have been reasonably requested in writing by the Purchaser at any time least ten (10) Business Days prior to the Closing Date that is required in connection with the Debt Financing by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act of 2001 and the requirements of 31 C.F.R. §1010.230; and (v) facilitate the preparation of definitive documentation for the Debt Financing (including any credit agreement, guarantees, pledge and security documents and perfection certificates, and disclosure schedules to any of the foregoing 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 upon, or become operative after, the occurrence of the Closing and (C) no liability shall be imposed on the Seller, any Acquired Company or any of their respective officers or employees involved). Notwithstanding anything herein to the contrary, (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default such requested cooperation shall not (A) by any Financing Source party to unreasonably disrupt or interfere with the Debt Commitment Letter business or any Debt Financing Agreement the operations of the Seller or Acquired Companies or (B) any other party cause competitive harm to the Debt Commitment Letter Seller or any Debt Financing Agreement ifAcquired Companies, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with if the transactions contemplated by this Agreement and all conditions precedent to funding of such financing areare not consummated, (ii) nothing in respect of certainty of funding, equivalent to (or more favorable this Section 5.23 shall require cooperation to the extent that it would (A) subject any of Seller’s directors, managers, officers or employees to any actual or potential personal liability, (B) reasonably be expected to conflict with, or violate, the Seller’s and/or any Acquired Company’s and/or any of its Subsidiaries’ organization documents or any Law, or result in the contravention of, or violation or breach of, or default under, any Contract to which the Seller or any Acquired Company thanis a party, (C) cause any condition to the conditions precedent Closing set forth in Article VIII to not be satisfied or (D) cause any breach of this Agreement or any related undertaking, (iii) the Debt Commitment Letter, Seller shall not be required to supplement (A) pay any commitment or replace other similar fee or incur or assume any liability or other obligation in connection with the Debt Financing (“Alternative Debt Financing”). Trueor be required to take any action that would subject it to actual or potential liability, correct and complete copies of each alternative financing commitment to bear any cost or expense or to make any other payment or agree to provide any indemnity in respect of such Alternative connection with the Debt Financing or any information utilized in connection therewith, (eachB) deliver or obtain opinions of internal or external counsel, a “New Debt Commitment Letter”)(C) provide access to or disclose any information where the Seller, together with all related fee letters advice of external counsel, determines that such access or disclosure could jeopardize the attorney-client privilege or contravene any Law or Contract or that is proprietary or competitively sensitive to the Seller and associated engagement letters its Affiliates (unless solely in the case of such proprietary or competitively sensitive information of the fee letter, Acquired Companies the proposed recipient of such proprietary or competitively sensitive information enters into a customary non-disclosure or other confidentiality agreement related to such information or is otherwise subject to an obligation of confidentiality with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality ofrespect to such information), or (D) waive or amend any terms of this Agreement or any material terms of any other Contract to which the aggregate amount of proceeds available underSeller is party and (iv) neither the Seller nor its directors, officers or employees, acting in such capacity, shall be required to execute, deliver or enter into or perform any agreement, certificate, document or instrument with respect to the Debt Financing contained therein redacted)(except for customary authorization letters in any marketing materials for the Debt Financing, will be promptly provided subject to the Company. In requirements above) or adopt any resolutions or take any other actions approving the event any New Debt Commitment Letter agreements, documents and instruments pursuant to which such debt financing is obtainedobtained (provided, (i) any reference in this Agreement however, that directors, managers and officers of the Acquired Company determined by the Purchaser to remain as directors, managers and officers of Acquired Companies on and after the Closing Date may execute and deliver such documents so long as such documentation is not released from escrow and does not become effective prior to the “Closing). The Seller hereby consents to the use of logos of the Acquired Companies (but, for the avoidance of doubt, none of the names, tradenames, logos or trademarks of the Seller and its Affiliates) in connection with the Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference ; provided that such logos are used solely in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter manner that is not superseded by any New Debt Commitment Letter at intended to, nor reasonably likely to, harm or disparage the time in question and each New Debt Commitment Letter to Seller or the extent then in effectAcquired Companies.
(e) On The Purchaser shall, promptly upon request by the Closing DateSeller (i) reimburse the Seller for all reasonable and documented out-of-pocket costs and expenses (including reasonable outside attorneys’ fees and disbursements) incurred by the Seller, Parent shall provide its Subsidiaries and Affiliates, or any of its or their respective Representatives in connection with its cooperation pursuant to this Section 5.23 (other than any such costs or expenses incurred by or on behalf of the Seller or its Subsidiaries, in connection with their ordinary course financial reporting requirements); and (ii) indemnify and hold harmless the Seller, its Subsidiaries and Affiliates, and its and their respective Representatives from and against any and all funds required to effect the repayment of all indebtedness under the Company Credit Agreement losses suffered or incurred by them in full in accordance connection with the Company Credit arrangement of the Debt Financing, any action taken by them pursuant to this Section 5.23, and any information used in connection therewith, in each case, except to the extent suffered or incurred as a result of its own the bad faith, gross negligence, willful misconduct, or intentional breach of this Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything Prior to receiving an non-public or confidential information, each Debt Financing Source shall enter into a joinder to the contrary contained hereinConfidentiality Agreement in a form reasonably acceptable to Seller and all non-public or other confidential information provided by the Seller, Parent’s obligations hereunder are not subject to a condition regarding Parent’s its Subsidiaries, or any of its or their respective Representatives to the Purchaser, its Affiliates’ obtaining funds , or its or their respective Representatives pursuant to consummate this Section 5.23 will be kept confidential in accordance with the Merger and Confidentiality Agreement, except as the transactions contemplated by Purchaser may be permitted under the Confidentiality Agreement to disclose such information, subject to the provisions set forth in this Agreement, to any Debt Financing Source, prospective Debt Financing Source or other financial institutions that are or may become parties to the Debt Financing, rating agencies (and, in each case, to their respective Representatives) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as if parties thereto, or (ii) are otherwise subject to other customary confidentiality arrangements, including “click through” confidentiality agreements and confidentiality provisions contained in customary bank books and offering memoranda.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Packaging Corp of America)
Financing. (a) Subject to the terms Parent and conditions Merger Sub shall, and shall cause each of this Agreementtheir respective Affiliates to, Parent shall use its reasonable best efforts to take, obtain and consummate the Equity Financing at or cause prior 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 Effective Time on the terms described in, and conditions described in the Debt Commitment Letter pursuant subject only to the terms thereof (including any “market flex” provisions) conditions expressly set forth in, the Equity Commitment Letters delivered to the Company on or prior to the date hereof, including using its reasonable best efforts to seek to enforce its rights under maintain in full force and effect each of the Debt Equity Commitment Letter Letters. Without limiting the generality of the foregoing, in the event of a breach thereof by that all conditions contained in the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Equity Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing Letters have been satisfied (or satisfaction of the conditions to the Debt Financing) on the Closing Dateupon funding will be satisfied), or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent Merger Sub shall, and shall cause its Affiliates and Representatives the Equity Investors to, use its reasonable best efforts (A) fund at, prior to maintain in effect or concurrently with the Debt Commitment Letter (provided that Effective Time the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Equity Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties required to consummate the MergerTransactions and to pay the Required Amount at, all conditions to receipt of the full amount of the Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply or concurrently with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and ▇▇▇▇▇▇ Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations respective obligations, and enforce their rights, under the Debt Equity Commitment Letter Letters in a timely and definitive financing agreements and to fund on or before the Effective Time the Debt Financingdiligent manner. 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent Merger Sub shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, (A) permit any amendment, assignment, supplement or other modification to, or any waiver of any provision or remedy under, restate, substitute or replace, any of the Equity Commitment Letters if such amendment, assignment, supplement, modification, waiver, restatement, substitution or replacement would reasonably be expected to (1) (x) adversely impact the ability of either Parent or Merger Sub to enforce their respective rights against any other parties to the Equity Commitment Letters in any respect as so amended, assigned, replaced, restated, substituted, supplemented or otherwise modified, relative to the ability of Merger Sub to enforce its rights against any of such other parties to the Equity Commitment Letters as in effect on the date hereof, (y) add new (or expand, amend, or otherwise modify any existing) conditions to the receipt of any Equity Financing or otherwise adversely affect (including with respect to timing) the ability or likelihood of Parent or Merger Sub to timely consummate the Merger at the Closing or any of the Transactions or (z) make the timely funding of any Equity Financing or satisfaction of the conditions to obtaining the Equity Financing less likely to occur, (2) reduce the amount of the Equity Financing or (3) prevent, impede, impair or delay the consummation of the Transactions or obtaining an amount of the Equity Financing at least equal to the Required Amount, (B) terminate any Equity Commitment Letter, (C) take or fail to take any action or enter into any transaction that would reasonably be expected to materially impede, impair, delay or prevent the timely consummation of all the Equity Financing contemplated by the Equity Commitment Letters or (D) adversely affect the ability of Parent and Merger Sub to enforce its rights against the other parties to any portion of the Equity Commitment Letters.
(b) Prior to the Closing, the Company shall, and shall use its commercially reasonable efforts to cause its Representatives to, provide such reasonable cooperation as is customary and reasonably requested by Parent in connection with the obtaining and arranging of the Debt Financing.. Without limiting the generality of the foregoing, such reasonable best efforts in any event shall include:
(di) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof participating in a reasonable number of meetings (including meetings with prospective Debt Financing Sources), presentations, road shows, due diligence sessions and prior sessions with rating agencies, at reasonable and mutually agreed times and with reasonable advance notice;
(ii) to the Closing from consummated offerings or other incurrences of debt (including notes) extent required by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, facilitating the pledging of, and perfection of security interests in, collateral, effective no earlier than the Effective Time;
(wiii) the aggregate amount of furnishing Parent and the Debt Financing committed under Sources as promptly as reasonably practicable following the Debt Commitment Letter following delivery of a request therefor to the Company by Parent (which notice shall state with specificity the information requested) such reduction, together with financial and other cash information regarding the Company and cash equivalents available to Parent, its Subsidiaries as is sufficient to pay all amounts customarily required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds execution of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company financings of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification a type similar to the Debt Commitment Letter relating thereto will be promptly provided to Financing, including the Company. If commitments under Company Financial Information;
(iv) in each case following Parent’s reasonable request, assisting Parent and Merger Sub in the Debt Commitment Letter have been reduced to zero preparation of (A) confidential information memoranda (including a version that does not include material non-public information) and other customary marketing materials required in connection with financings similar to the preceding sentenceDebt Financing and (B) materials for rating agency presentations;
(v) following Parent’s reasonable request, using commercially reasonable efforts to cause directors and officers who will continue to hold such offices and positions from and after the obligations Effective Time to execute and provide to be held in escrow (to be released by the Company not before the occurrence of the Effective Time) resolutions or consents of the Company and its Subsidiaries pursuant with respect to Section 6.14 shall no longer be in effect. Further, Parent shall have entering into the right Definitive Financing Agreements and otherwise as necessary to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount authorize consummation of the Debt Financing, together ; provided that no such resolution or consent shall become effective until the Effective Time;
(vi) providing (A) customary authorization and representation letters to the Debt Financing Sources with other cash respect to marketing materials from a senior officer of the Company (which authorization and cash equivalents available representation letters will become effective before the Effective Time) to the extent required in the Debt Commitment Letter and (B) a certificate of the chief financial officer of the Company in the form set forth on Annex I to Exhibit C of the Debt Commitment Letter (as in effect on the date hereof) with respect to solvency matters;
(vii) if requested by Parent, providing (A) at least three Business Days prior to the Closing Date, all documentation and other information regarding the Company and its Subsidiaries as is sufficient required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, to pay all amounts the extent requested by Parent in writing at least nine Business Days prior to the anticipated Closing Date and (B) certification regarding beneficial ownership as required by 31 C.F.R. §1010.230 to be paid any Debt Financing Source that has requested such certification;
(viii) assisting reasonably in the preparation and execution of necessary and customary Definitive Financing Agreements (including one or more credit agreements, security agreements, mortgages and/or guarantees and the schedules and exhibits thereto) in connection with the transactions contemplated Debt Financing or other certificates or documents as may reasonably be requested by this Agreement and all conditions precedent to funding of such financing areParent, in respect of certainty of fundingeach case, equivalent to (or more favorable be held in escrow pending release by the Company at, and subject to the Company thanoccurrence of, the Effective Time; and
(ix) to the conditions precedent set forth extent required in the Debt Commitment Letter, using commercially reasonable efforts to supplement or replace ensure that the syndication efforts with respect to the Debt Financing (“Alternative Debt Financing”). True, correct benefit materially from the existing lending and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case investment banking relationships of the fee letterCompany, it being understood and agreed that (x) such cooperation shall not unreasonably interfere with only the fee amounts, pricing, “market flex” ongoing operations of the Company or any of its Affiliates and (y) the provisions set forth in this Section 7.13(b) represent the sole obligation of the Company and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, its Affiliates with respect to the Debt Financing contained therein redacted), will be promptly provided to and no other provision of this Agreement (including the Company. In exhibits and schedules hereto) or the event any New Debt Commitment Letter is obtainedwill be deemed to expand such obligations. All non-public or otherwise confidential information regarding the Company or its Affiliates obtained by Parent or Merger Sub or their Representatives pursuant to this Section 7.13 shall be kept confidential in accordance with the Confidentiality Agreement, including any joinder or other agreement entered into in connection therewith (i) any reference in this Agreement which, with respect to the “potential Debt Financing” Financing Sources who are not party to the Debt Commitment Letter but are participating in the syndication process, shall include be satisfied by the confidentiality provisions applicable under customary confidentiality undertakings in the context of customary syndication practices for debt financing financings of the type contemplated by the Debt Commitment Letter (as modified in effect on the date hereof)). The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided that such logos are used solely in a manner that is reasonable and customary and that is not reasonably likely to harm or disparage the Company or its Subsidiaries in any respect.
(c) Notwithstanding anything herein to the contrary, (i) no directors or managers of the Company or its Affiliates (other than any director or manager who is continuing as a director or manager of any the Company or its Subsidiaries following the consummation of the Transactions) shall be required to pass resolutions or consents to approve or authorize the execution or delivery of the Debt Financing or to execute, deliver or enter into, or perform any agreement, certificate, arrangement, document or instrument with respect to the Debt Financing (other than the documents to be delivered pursuant to clause Section 7.13(b)(vi)), including any definitive agreements with respect to the Debt Financing (ii) belowthe “Definitive Financing Agreements”), (ii) no obligation of the Company, its Affiliates or any reference in this Agreement of their respective Representatives undertaken pursuant to the “Debt Commitment Letter” foregoing shall be deemed effective until Closing (other than the authorization and representation letters to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter be delivered pursuant to the extent then in effectSection 7.13(b)(vi)(A)), and (iii) none of the Company, its Affiliates or any reference of their respective Representatives shall be required to (A) pay any commitment or other similar fee in connection with the Debt Financing or incur any other cost or expense that is not promptly reimbursed by Parent in connection with the Debt Financing, (B) take any actions to the extent such actions would unreasonably interfere with the ongoing business or operations of the Company and its Affiliates, (C) take any actions that would conflict with or violate the Company’s or its Affiliates’ organizational documents or any Laws, or that would reasonably be expected to result in a violation or breach of, or default under, any material Contract to which any of them are a party or by which any of their assets are bound, (D) give to any other Person any indemnities in connection with the Financing that are effective prior to the Closing or (E) take any actions that would cause any representation or warranty in this Agreement to “fee letter” be breached or that would cause any closing condition set forth in Article VIII to fail to be satisfied or that would otherwise cause a breach of this Agreement. Nothing contained in this Section 7.13 or otherwise shall require the Company or its Affiliates to be an issuer or other obligor with respect to the Debt Financing prior to the Effective Time. Notwithstanding anything to the contrary, the condition set forth in Section 8.02(b), as it applies to the Company’s obligations under this Section 7.13, shall be deemed satisfied unless the Debt Financing has not been obtained as a direct result of the Company’s Willful and Material Breach of its obligations under this Section 7.13.
(d) Each of Parent and ▇▇▇▇▇▇ Sub acknowledges and agrees that the only obligations of the Company or any of its Affiliates or Representatives with respect to include any fee letter relating portion of the Financing prior to the Effective Time are the obligations expressly set forth in this Agreement. Parent shall, promptly upon request by the Company, reimburse the Company for all out-of-pocket costs and expenses incurred by the Company, its Affiliates or their respective Representatives in connection with such cooperation by the Company or any of its Affiliates and shall indemnify and hold harmless the Company, its Affiliates and their respective Representatives for and against any and all liabilities, losses, obligations, damages, costs and expenses of any kind (whether direct or indirect, known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, due or to become due and whether in contract, tort, strict liability or otherwise) suffered or incurred by them in connection with the arrangement of any Financing, any alternative financing, any action taken by them pursuant to this Section 7.13 and any information utilized in connection therewith (other than written information provided by the Company to Parent or Merger Sub for use in connection with the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter Financing), except to the extent then in effectresulting from the gross negligence, fraud or willful misconduct of Company or any of its Subsidiaries or Representatives.
(e) On Each of Parent and ▇▇▇▇▇▇ Sub acknowledges and agrees that it is not a condition to the Closing Dateor to any of the other obligations under this Agreement that Parent and Merger Sub obtain the Equity Financing, any Financing or any other financing. For the avoidance of doubt, if the Equity Commitment, any Financing or any other financing has not been obtained, Parent and Merger Sub shall provide all funds required continue to effect be obligated to complete the repayment of all indebtedness under Merger, pay the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to Required Amount and consummate the Merger and the transactions contemplated by this AgreementTransactions.
Appears in 1 contract
Financing. (a) Subject Without the Company’s prior written consent (which shall not be unreasonably withheld), Parent shall not agree to any material amendment or modification to be made to the Financing Commitments; provided, that Parent may replace, amend or modify any term of the Financing Commitments, without the Company’s consent, (x) to modify the pricing terms and or to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Financing Commitments as of the date hereof or (y) if such replacement, amendment or modification would not reduce the amount of aggregate cash proceeds available from the Financing to less than required to consummate the Merger or impose new or additional conditions precedent that would reasonably be expected to adversely impact the ability of Parent to enforce its rights against the other parties to the Financing Commitments or that materially delay or impair the ability of Parent to consummate the transactions contemplated by this Agreement, . Parent 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, advisable or proper necessary to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof Financing Commitments (including any “market flex” provisions) the flex provisions therein, but not in excess or outside of such provisions unless so agreed by Parent, and taking into account the anticipated timing of the Marketing Period), including using its reasonable best efforts to seek to enforce its rights under (i) satisfy, perform and observe on a timely basis (taking into account the Debt Commitment Letter expected timing of the Marketing Period) all conditions and covenants within Parent’s control in the event of a breach thereof by the financing provider(s) Financing Commitments and otherwise comply in all material respects with its obligations thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (Bii) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are (including the flex provisions but not materially less favorable to Parent than those contained in excess or outside such flex provisions unless so agreed by Parent) contemplated by the Debt Commitment Letter, Financing Commitments and (Ciii) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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 LetterFinancing Commitments, to consummate the Debt Financing at or prior to Closing. Without limiting the Closinggenerality of the foregoing, Parent shall give the Company prompt notice: (DA) of any breach or default or threatened breach or default by any party to comply with its obligations under any Financing Commitment, in each case, of which Parent becomes aware, if such breach or default would reasonably be expected to result in a material delay of the Debt Commitment Letter, Closing Date; and (EB) of the receipt of any written notice or other written communication from any Person with respect to any breach or default or threatened breach, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing or any provisions of the Financing Commitments or any definitive document related to the Financing. If any portion of the Financing becomes unavailable on the terms and conditions (including the flex provisions but not in excess or outside such flex provisions unless so agreed by Parent) contemplated in the Financing Commitments in effect on the date hereof so as not to enable Parent to proceed with the Merger in a timely manner, Parent shall use its reasonable best efforts to arrange and obtain, as promptly as practicable following the occurrence of such event, alternative financing from the same or alternative sources (provided, that if Alternative Financing (as defined herein) is not available from the same sources, then Parent shall use its reasonable best efforts to arrange and obtain Alternative Financing from alternative sources) in an amount sufficient, when added to the portion of the Financing being replaced that is still available, to consummate the Debt Financing at transactions contemplated by this Agreement and on terms and conditions that are no less favorable to Parent, taken as a whole (taking into account any flex provisions, but not in excess or prior to the Effective Time. In the event that all conditions precedent expressly outside of such flex provisions unless so agreed by Parent), than those set forth in the Debt Commitment Letter have been or, upon funding Financing Commitments in effect on the date hereof (“Alternative Financing”); provided that the “effective yield” in respect of the Debt Alternative Financing will bemay exceed the “effective yield” in respect of the Financing Commitments in effect as of the date hereof (including any flex provision) but by no more than fifty (50) basis points (unless so agreed by Parent). Notwithstanding anything herein to the contrary, satisfied, Parent and Sub in no event shall use their the reasonable best efforts of Parent be deemed or construed to enforce their rights underrequire Parent to, and Parent shall not be required to, (1) pay any fees in excess of those contemplated by the Financing Commitments, (2) agree to any economic provision that is outside of, or less favorable than, any applicable economic provision of the Financing Commitments or any related fee letter (including any flex provision therein) or (3) initiate any enforcement action to cause the Financing Sources, lenders and or other parties providing the other persons providing or committing to provide the Debt Financing to comply fund such Financing; provided that, clauses (1) (solely with their obligations under respect to any upfront fees or original issue discount) and (2) shall apply only to the Debt Commitment Letter and definitive financing agreements and to fund on or before extent that the Effective Time “effective yield” in respect of any Alternative Financing exceeds the Debt Financing“effective yield” in respect of the Financing Commitments in effect as of the date hereof (including any flex provision therein) by more than fifty (50) basis points. Parent shall keep the Company reasonably informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any Any reference in this Agreement to the “Debt Financing” and “Financing Commitments” shall include the debt financing contemplated by the Debt Financing Commitments on the date hereof, as permitted to be amended, modified or replaced (in whole or in part) by this Section 5.12(a), including any Alternative Financing. For purposes hereof, in calculating the “effective yield” under the Financing Commitments as in effect on the date hereof or any Alternative Financing, (x) upfront fees and original issue discount (each converted to yield assuming a four-year average life and without any present value discount), interest rate spreads and interest rate benchmarks floors will be taken into account and (y) the effect of any arrangement, structuring, syndication or other fees payable in connection therewith that are not shared with all lenders or holders of such Alternative Financing and any fluctuations in LIBOR or comparable rate will be excluded.
(b) Prior to the Closing, the Company shall use reasonable best efforts to provide to Parent, at Parent’s sole expense, all reasonable cooperation reasonably requested by Parent in connection with the Financing, including:
(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 by Parent or the lenders under the Commitment Letter as modified pursuant to in connection with the Financing, including financial statements (including the financial statements set forth in clause (ii) below) (which, with respect to annual financial statements, shall have been audited and, with respect to interim financial statements, shall have been reviewed by the independent accountants for the Company as provided in Statement on Auditing Standards No. 100), pro forma financial statements of the Company (provided that it is understood that the preparation of combined pro forma financial information and the assumptions underlying the pro forma adjustments to be made are the responsibility of Parent), business and other financial data of the type and form required by Regulation S-X and Regulation S-K under the Securities Act and of type and form customarily included in a registration statement on Form S-1 under the Securities Act for a public offering of the debt securities contemplated by the Commitment Letter, assuming that such offering was consummated at the same time during the Company’s fiscal year as the offering of debt securities contemplated by the Commitment Letter (other than consolidating financial statements; provided that customary data as to the total assets, revenue, EBITDA and adjusted EBITDA of non-guarantor Subsidiaries shall be provided), all other data that would be necessary for the underwriter to such offering of the debt securities contemplated by the Financing Commitments to receive customary “comfort” (including “negative assurance” comfort) from the Company’s independent accountants in connection with such offering of the debt securities contemplated by the Financing Commitments, and reasonable and customary authorization letters to the financing sources authorizing the distribution of information to prospective lenders and containing customary information;
(ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded furnishing Parent and its Financing Sources as promptly as reasonably practicable with (A) by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter date that is not superseded by later than forty-five (45) calendar days after the end of any New Debt Commitment Letter at fiscal quarter after the time in question and each New Debt Commitment Letter date hereof that is not a fiscal year end, the unaudited consolidated balance sheet of the Company as of the end of such subsequent quarterly period ended no less than forty-five (45) calendar days prior to the extent then in effect.
Closing Date and the related unaudited statements of income and cash flows and (eB) On by a date that is not later than ninety (90) calendar days after the end of any fiscal year, the audited consolidated balance sheet of the Company as of the end of such fiscal year ended not less than ninety (90) days prior to the Closing Date, Parent shall provide all funds required and the related audited statements of income and cash flows for the year then ended, and the notes and schedules thereto (the information described in clauses (i) and (ii) of this Section 5.12(b) being collectively referred to effect as the repayment “Required Information”);
(iii) participating in a reasonable number of all indebtedness under meetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the financing and senior management and Representatives, with appropriate seniority and expertise, of the Company Credit Agreement and its Subsidiaries), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in full in accordance connection with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii)financing.
(fiv) Notwithstanding anything facilitating the pledging of collateral and perfection of security interests (including obtaining customary payoff letters, lien releases and instruments of termination or discharge) as required by the Commitment Letters, including executing and delivering any customary collateral documents and other customary documents and certificates as may be reasonably requested by Parent and cooperating and assisting Parent in obtaining customary legal opinions, appraisals, surveys, title insurance, other certifications and documents as reasonably required by the Financing Sources for financings similar to the contrary contained hereinFinancing, Parent’s obligations hereunder are not subject and cooperating with and assisting Parent in connection with obtaining such items;
(v) assisting with the preparation of materials for rating agencies and rating agency presentations, bank information memoranda, offering documents (including assistance in the preparation of pro forma financial statements giving effect to the transactions hereunder), private placement memoranda and similar documents required in connection with the Financing;
(vi) facilitating the execution and delivery at the Closing of definitive Financing documents by the Company and its Subsidiaries and all other customary documents in connection therewith, including pledge and security agreements, mortgages, guarantees, filings and certificates as reasonably required in connection with the Financing (including a condition regarding Parent’s certificate of the Chief Financial Officer of the Company or any of its Affiliates’ obtaining funds Subsidiaries with respect to consummate solvency matters and consents of independent accountants for the Merger use of their reports in any materials relating to the Financing, provided that any obligations contained in such documents shall be effective no earlier than as of the Closing);
(vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Financing to the extent within the control of the Company and causing the transactions contemplated taking of corporate actions by this Agreementthe Company and its Subsidiaries reasonably necessary to permit the completion of the Financing; provided, that (i) the foregoing shall not require such cooperation to the extent that it would interfere unreasonably with the business or operation of the Company or its Subsidiaries, and (ii) neither the Company nor any of its Subsidiaries shall be required to commit to take any action (including the payment of any commitment or other fee or the incurrence of any liability prior to the Effective Time to the extent not reimbursed by Parent pursuant to Section 5.12(c)) that is not contingent upon the Closing (including the entry into any agreement) or that would be effective prior to the Closing Date.
(c) Parent shall, upon written request of the Company, reimburse the Company for all reasonable and documented out-of-pocket costs incurred in good faith by the Company and its Subsidiaries in connection with their obligations pursuant to Section 5.12(b) prior to the Closing. Parent shall indemnify, defend and hold harmless the Company and its Subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with the arrangement of the Financing or providing any of the information utilized in connection therewith, except to the extent resulting from the gross negligence, willful misconduct or bad faith of any such Persons.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to takeobtain, or cause to be takenobtained, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt proceeds of the Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Letters, including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made with respect to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (Ai) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain maintaining in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)Letters, (Bii) to negotiate and enter into negotiating definitive agreements with respect to the Debt Commitment Letter Financing (the “Debt Financing Definitive Agreements”) on consistent in all material respects with the terms and conditions that are not materially less favorable to Parent than those contained therein (including, as necessary, the “flex” provisions contained in the Debt Commitment Fee Letter) or, if available, on other terms that are acceptable to Parent and would not adversely affect (Cincluding with respect to timing, taking into account the expected timing of the Marketing Period) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties Parent to consummate the Merger, transactions contemplated herein and (iii) satisfying all conditions applicable to receipt of Parent and its Subsidiaries to obtaining the full amount of the Debt Financing at the Closing set forth therein that are within its control Parent or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective TimeMerger Sub’s control. In the event that all conditions precedent expressly set forth contained in the Debt Commitment Letter and Definitive Agreements have been or, satisfied (or upon funding of the Debt Financing will be, be satisfied), Parent and Merger Sub shall use their reasonable best efforts to enforce their rights under, and timely cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and Lenders to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreementsas applicable.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (iib) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent and Merger Sub shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take (i) terminate any action Commitment Letter, unless such Commitment Letter is replaced in a manner consistent with the following clause (ii), or enter into (ii) permit any transaction that would reasonably be expected to materially impairamendment or modification to, delay or prevent consummation of all or any portion waiver of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings any material provision or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default remedy under, or violation ofreplace, the Debt Commitment LetterLetters if such amendment, modification, waiver, or replacement (wA) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, would (x1) the proceeds of such debt offerings add any new (or other incurrences have been received by Parent in cash, (yadversely modify any existing) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification condition to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all Financing Commitments or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not otherwise adversely affect the enforceability, availability ability of Parent or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided Merger Sub to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to timely consummate the Merger and the transactions contemplated by this Agreement.contemplated
Appears in 1 contract
Sources: Merger Agreement (Pike Corp)
Financing. (a) Subject Each of Parent and Merger Sub shall use its best efforts to complete the Financing on the terms and conditions described in the Financing Commitments as promptly as practicable but in any event on or before the Outside Date, including using its best efforts to (i) negotiate definitive agreements with respect thereto (A) on the terms and conditions contained in the Financing Commitments or (B) on other terms and conditions that (1) are no less favorable to Parent and Merger Sub taken as a whole, (2) do not impose any conditions other than those set forth in the Debt Financing Commitments (the “Debt Financing Conditions”) or set forth in the Equity Commitment Letter, as applicable, or adversely change in any material respect any Debt Financing Condition or condition set forth in the Equity Commitment Letter, as applicable, and (3) would not reasonably be expected to prevent, materially delay or materially impair the ability of this AgreementParent or Merger Sub to consummate the Transactions on or before the Outside Date, (ii) satisfy on a timely basis all conditions applicable to Parent and/or Merger Sub in such definitive agreements that are within their control and (iii) not permit any amendment or modification to be made to, or any waiver of, any material provision or remedy under the Financing Commitments, if such amendment, modification or waiver (A) imposes any new or additional conditions or adversely changes in any material respect any Debt Financing Condition or condition set forth in the Equity Commitment Letter or (B) would reasonably be expected to prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the Transactions on or before the Outside Date.
(b) If all or a portion of the Financing becomes unavailable in accordance with the terms of the Financing Commitments, then (i) Parent shall notify the Company promptly and (ii) Parent and Merger Sub shall use its their respective reasonable best efforts to obtain any such portion from alternative sources as promptly as practicable following the occurrence of such event, on terms that (A) are no less favorable than those in the Financing Commitments to Parent and Merger Sub taken as a whole and (B) would not reasonably be expected to prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the Transactions on or before the Outside Date (the “Alternative Financing”), and to obtain a new financing commitment letter related to such Alternative Financing (the “Alternative Financing Commitment”). If applicable, each of Parent and Merger Sub shall use their respective 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 or proper to arrange promptly and obtain consummate the Debt Alternative Financing on the terms and conditions described in the Debt Alternative Financing Commitment Letter pursuant to as promptly as practicable but in any event on or before the terms thereof (including any “market flex” provisions) Outside Date, including using its reasonable best efforts to seek (i) negotiate definitive agreements with respect to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made toAlternative Financing (such definitive agreements, or any waiver of any provision underdefinitive agreements entered into under Section 7.08(a), the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver “Financing Agreements”) (A) reduces on the aggregate amount of terms and conditions contained in the cash proceeds from the Debt Alternative Financing Commitment or (B) imposes on other terms and conditions that (1) are no less favorable to Parent and Merger Sub taken as a whole, (2) do not impose any new or additional conditions to the initial funding conditions, or otherwise expands adversely change in any of the conditions material respect any existing conditions, to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of Alternative Financing as set forth in the Debt Commitment Letter in a manner that would reasonably be expected to Alternative Financing Commitments and (x3) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 prevent, materially delay or prevent materially impair the Closing)ability of Parent or Merger Sub to consummate the Transactions on or before the Outside Date, (ii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub in such definitive agreements that are within their control, and (iii) upon satisfaction of such conditions, to use their best efforts to cause the funding of such Alternative Financing.
(c) Parent and Merger Sub shall, and shall use their best efforts to cause their Representatives to, comply in all material respects with the terms of the Financing Commitments, any Alternative Financing Commitment, the Financing Agreements and any related fee and engagement letters. Parent shall promptly deliver (i) furnish to the Company truecomplete, complete correct and correct executed copies of any such amendmentthe Financing Agreements promptly upon their execution and (ii) otherwise keep the Company reasonably informed of the status of Parent’s efforts to arrange the Financing or the Alternative Financing, modification or replacementas applicable, including providing to the Company copies of Financing Agreements in substantially final form following the negotiation thereof.
(bd) Parent shallPrior to the Effective Time, the Company, acting through the Special Committee if then in existence or otherwise by resolution of a majority of Disinterested Directors, shall provide, and shall cause its Affiliates and Representatives subsidiaries to, and shall use its reasonable best efforts (A) to maintain cause their respective Representatives, including legal and accounting, to, provide all cooperation reasonably requested by Parent in effect connection with the Debt Commitment Letter Financing or any Alternative Financing, including, without limitation: (provided that the Debt Commitment Letter may be amendedi) reasonable participation in a reasonable number of meetings, supplementedpresentations, replaceddue diligence sessions, modified or waived as provided in this Section 6.13)drafting sessions, (B) to negotiate road shows and enter into definitive agreements sessions with rating agencies with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 definitive financing arrangements for the Debt Financing at or any Alternative Financing; (ii) assistance with the Closing set forth therein that are within preparation of customary materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, business projections and financial statements (including those required by the SEC) and similar documents required in connection with the Debt Financing or any Alternative Financing; (iii) execution and delivery of any pledge and security documents and other similar documents, other definitive financing documents, and other certificates and documents to be executed and delivered by the Company or any of its control or subject to its influence and, upon satisfaction subsidiaries as may be reasonably requested by Parent (including a certificate of the conditions set forth chief financial officer of the Company or any subsidiary with respect to solvency matters) and otherwise facilitate the pledging of collateral, in each case so long as not effective until on or after the Effective Time; (iv) furnishing Parent and its Debt Commitment LetterFinancing or Alternative Financing sources with readily-available historical financial and other pertinent information regarding the Company as may be reasonably requested by Parent, including all historical financial statements and financial data 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 under the Securities Act, to consummate the Debt Financing at or prior any Alternative Financing transaction executed in connection with the Transactions; (v) using best efforts to assist Parent in obtaining accountants’ comfort letters, legal opinions, surveys and title insurance as may be reasonably requested by Parent or the Closing, (D) to comply with its obligations lenders under the Debt Commitment Letter, and Financing Commitments or any Alternative Financing Commitment; (Evi) to consummate permit the prospective lenders involved in the Debt Financing at or any Alternative Financing to evaluate the Company’s current assets and cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements; (vii) so long as not effective until on or after the Effective Time, establish bank and other accounts and blocked account agreements and lock box arrangements in connection with any such collateral arrangements; and (viii) taking all corporate actions, subject to the occurrence of the Effective Time, reasonably requested by Parent to permit the consummation of the Debt Financing or any Alternative Financing and to permit the proceeds thereof to be made available to the Surviving Corporation immediately after the Effective Time. The Company shall cause its officers, in their capacities as officers, to deliver such customary management representation letters as any audit firm may request in connection with any comfort letters or similar documents required in connection with the Debt Financing or any Alternative Financing. The Company hereby consents to the use of its and its subsidiaries’ logos in connection with the Debt Financing or any Alternative Financing, provided that such logos are used in a manner that is not intended to nor reasonably likely to harm or disparage the Company or the reputation or goodwill of the Company or any of its subsidiaries and its or their marks. Nothing contained in this Section 7.08 or otherwise shall require the Company to be an issuer or other obligor with respect to the Debt Financing or any Alternative Financing prior to the Effective Time. In the event that all conditions precedent expressly set forth Nothing contained in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub this Section 7.08 or otherwise shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep require the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide pay any Transaction Costs related to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses any Alternative Financing other than the Transaction Costs related to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in such cooperation under this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii7.08(d).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Dorado 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 or proper to arrange and consummate the financing necessary for the Funds (the “Financing”) on the terms and conditions described in the Commitment Letter, including using its reasonable best efforts to (i) satisfy on a timely basis all terms, covenants and conditions set forth in the Commitment Letter; (ii) enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Commitment Letter; (iii) enforce its rights under the Commitment Letter; and (iv) consummate the Financing on or prior to the Outside Date. Dorado will furnish correct and complete copies of all such definitive agreements to Redfish promptly upon their execution.
(b) Dorado shall keep Redfish informed with respect to all material activity concerning the status of the Financing contemplated by the Commitment Letter and shall give Redfish prompt notice of any material adverse change with respect to such Financing. Without limiting the generality of the foregoing, Dorado agrees to notify Redfish promptly, and in any event within two business days, if at any time (i) the Commitment Letter shall expire or be terminated, rescinded or withdrawn for any reason, (ii) any financing source that is a party to the Commitment Letter notifies Dorado that such source no longer intends to provide financing to Dorado on the terms set forth therein or (iii) for any reason Dorado no longer believes in good faith that it will be able to obtain all or any portion of the Debt Funds on the terms set forth in the Commitment Letter. Dorado shall not, and shall not permit any of its affiliates to, without the prior written consent of Redfish, take or fail to take any action or enter into any transaction, including any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing, that could reasonably be expected to breach or make untrue any representation or warranty contained in the Commitment Letter or otherwise impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter. Dorado shall not amend or alter, or agree to amend or alter, the Commitment Letter in any manner that would prevent, impair or delay the consummation of transactions contemplated by this Agreement without the prior written consent of Redfish.
(c) If any portion of the Funds becomes unavailable or the Commitment Letter therefor shall be terminated, rescinded, withdrawn or modified in a manner materially adverse to Dorado for any reason, Dorado shall use its reasonable best efforts to arrange to obtain alternative financing for the Funds from alternative sources (“Alternate Financing”) and to obtain, and, if obtained, will provide Redfish a copy of, a new financing commitment that provides for at least the amount of the Funds on terms and conditions (including termination rights and funding conditions) no less favorable to Dorado, in the aggregate, than those included in such prior commitment letter (“New Commitment Letter”). To the extent applicable, Dorado shall use its reasonable best efforts to take, or cause to be taken, all action necessary, proper or advisable to arrange promptly and consummate the Alternate Financing on the terms and conditions described in any New Commitment Letter, including compliance with the Debt Commitment Letter pursuant to the terms thereof provisions of paragraphs (including any “market flex” provisionsa) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in of this Section 6.13)6.11, (Bwhich shall apply to any New Commitment Letter. Redfish acknowledges that Dorado’s compliance with the provisions of this Section 6.11(c) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Alternate Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability constitute a breach of the parties to consummate the Merger, all conditions to receipt representations and warranties of the full amount of the Debt 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 Dorado in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing4.9.
(d) Parent Dorado shall have publicly announce, not later than the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment LetterDetermination Date, (wi) whether or not it has entered into binding definitive agreements for the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (zii) trueif it has entered into such agreements, correct and complete copies of each material amendment whether or modification not all conditions to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant lenders to Section 6.14 shall no longer be in effect. Further, Parent consummate the Financing under such definitive agreements on the Closing Date shall have the right to substitute commitments in respect of other financings for all been satisfied or any portion waived as of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding date of such financing are, in respect of certainty of funding, equivalent to announcement (or more favorable to the Company than) the excluding for this purpose any conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with that by their nature can be satisfied only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to of consummation of the extent then in effectFinancing, and (iii) any reference in this Agreement to “fee letter” shall provided that such excluded conditions would be deemed to include any fee letter relating to satisfied or capable of satisfaction if the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at date of such consummation were the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment date of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iiisuch announcement).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject to the terms Purchaser and conditions of this Agreement, Purchaser Parent shall use its their reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain the Debt proceeds of the Financing on the terms and conditions described herein and in the Debt Commitment Letter pursuant prior to the Outside Date, including (i) maintaining in effect the Commitment Letter, (ii) negotiating definitive agreements with respect to the Financing (the “Definitive Agreements”) consistent with the terms thereof and conditions contained therein (including, as necessary, the “flex” provisions contained in any related fee letter) or, if available, on other terms that are acceptable to Purchaser and Purchaser Parent and not materially less favorable, taken as a whole to Purchaser or Purchaser Parent than the terms set forth in the Commitment Letter and would not adversely affect (including any “market flex” provisionswith respect to timing) including using the ability of Purchaser to consummate the transactions contemplated herein and (iii) satisfying on a timely basis all conditions applicable to Purchaser Parent, Purchaser and their respective Subsidiaries in the Commitment Letter and the Definitive Agreements. Each of Purchaser and Purchaser Parent shall use its reasonable best efforts to seek to comply with its obligations, and shall enforce its rights under the Debt Commitment Letter and Definitive Agreements, including by seeking specific performance, in the event each case in a timely and diligent manner.
(b) Each of a breach thereof by the financing provider(s) thereunder. Purchaser and Purchaser Parent shall not, without the Company’s prior written consentconsent of Sellers, (i) permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 (xA) prevent or delay or prevent the funding in full Closing Date from occurring, (B) reduce the aggregate amount of the Debt Financing Financing, (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (yC) adversely affect the ability of Purchaser or Purchaser Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (providedDefinitive Agreements as so amended or modified, that relative to the ability of Purchaser or Purchaser Parent may amend to enforce its rights against such other parties to the Debt Commitment Letter as in effect on the date hereof or in the Definitive Agreements or (D) make the funding of the Financing materially less likely to occur, other than (x) a waiver of any closing conditions by Financing Sources or their agents or (y) to add or replace lendersFinancing Sources, lead arrangers, bookrunners, bookrunners syndication agents or similar entities so long that have not executed the Commitment Letter as such action would not reasonably be expected of the date hereof; or (ii) release, terminate or consent to delay the release or prevent termination of the Closing)obligations of any Financing Sources or other Persons under the Commitment Letter. Purchaser and Purchaser Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and but in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware days of receipt of any breach such proposed amendment, modification, waiver, release, termination or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provideconsent, or it refuses notice thereof) deliver to provideSellers copies of any such proposed amendment, all modification, waiver, release, termination or consent.
(c) In the event that any portion of the Debt Financing becomes unavailable, regardless of the reason therefor, each of Purchaser and Purchaser Parent shall (i) use its reasonable best efforts to obtain alternative debt financing (in an amount sufficient, when taken together with Purchaser’s and Purchaser Parent’s cash and marketable securities on hand and the available portion of the Financing, to consummate the transactions contemplated by this Agreement and to pay related fees and expenses) from the Debt Commitment Letter on same or other sources and which do not include any conditions to the terms consummation of such alternative debt financing that are more onerous to Purchaser and Purchaser Parent than the conditions set forth therein. in the Financing and are otherwise on terms no less favorable to Purchaser and Purchaser Parent shall than such unavailable Financing (including the “flex” provisions) and (ii) promptly provide (but in any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any event within two (2) days of its Affiliates to, without the prior written consent receipt of notice of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation unavailability of all or any portion of the Debt Financing.
(d) Parent shall have the right notify Sellers of such unavailability and, to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation ofPurchaser’s knowledge, the Debt Commitment Letter, (w) reason therefor. For the aggregate amount purposes of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentenceSection 6.10, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (term “Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt any commitment letter (or similar agreement) with respect to any alternative financing arranged in compliance herewith (and any Commitment Letter which is not superseded by a New Debt Commitment Letter remaining in effect at the time in question question) and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to term “fee letterFinancing” shall be deemed to include any fee financing contemplated by any commitment letter relating as permitted by this Section 6.10 to be amended or modified or replaced by any alternative financing arranged in compliance herewith. Purchaser and Purchaser Parent shall provide Sellers with prompt (but in any event within two (2) days of receipt of notice regarding any of the items hereinafter set forth) written notice if (A) to the Debt Knowledge of Purchaser, there exists any breach or default by any party to the Commitment Letter, any letter or agreement related thereto or the Definitive Agreements or any termination of the obligations of any Financing Sources or other Persons under the Commitment Letter, (B) Purchaser or Purchaser Parent receives any written notice or other written communication from any Financing Source or other source with respect to any actual or threatened breach, default, termination or repudiation by any party to any Commitment Letter or the Definitive Agreements of any provision thereof or (C) for any reason, Purchaser or Purchaser Parent no longer believes in good faith that is not superseded it will be able to obtain all or any portion of the Financing contemplated by any New Debt the Commitment Letter at on the time in question terms described therein. Purchaser and each New Debt Commitment Letter Purchaser Parent shall keep Sellers reasonably informed of the status of its efforts to consummate the extent then in effectFinancing.
(ed) On Prior to the Closing, Sellers shall use their reasonable best efforts to provide, and to cause their respective Representatives (other than their lenders) to use their reasonable best efforts to provide, upon reasonable notice from Purchaser and at reasonable times, all customary cooperation in connection with the arrangement, syndication and consummation of the Financing (including any equity financing) contemplated by the Commitment Letter, which shall be limited to the following: (i) using their reasonable best efforts to furnish to Purchaser, Purchaser Parent and Financing Sources, as promptly as practicable, the Required Information; (ii) participating in a reasonable number of meetings (including conference calls with the parties acting as agents, lead arrangers, lead bookrunners for the Financing (including any equity financing) and senior management and the employees, investment bankers, attorneys, accountants and other Representatives of Purchaser or Purchaser Parent), drafting sessions, due diligence sessions and sessions with ratings agencies, in each case that are customary for financings of a type similar to the Financing (including any equity financing), in each case, at times and locations mutually agreed upon and upon reasonable advance notice; (iii) assisting in a commercially reasonable manner Purchaser, Purchaser Parent and their Financing Sources in the preparation of any offering documents, prospectus, syndication documents and materials, including confidential information memoranda, private placement memoranda, offering memoranda, lender and investor presentations, bank information memoranda, rating agency materials and similar documents contemplated therein as reasonably requested by Purchaser or Purchaser Parent and customary for financings of a type similar to the Financing (including any equity financing) (collectively, the “Offering Documentation”); (iv) reasonably cooperating with the marketing efforts of Purchaser, Purchaser Parent and Financing Sources for any of such Financing (including any equity financing); (v) subject to the occurrence of the Closing, executing and delivering any customary representation and authorization letters to accountants and auditors, customary closing certificates and any other certificates, letters and documents, in each case as may be reasonably requested by Purchaser or Purchaser Parent and customary for financings of a type similar to the Financing (including any equity financing); (vi) using reasonable best efforts to facilitate the obtaining of (A) audit reports, authorization letters and consents of accountants and auditors with respect to financial statements and other financial information for the Purchased Assets, in each case as may be reasonably requested by Purchaser and customary for financings of a type similar to the Financing (including any equity financing), for inclusion in any Offering Documentation, and (B) subject to the occurrence of the Closing, legal opinions of internal and local legal counsel, in each case as reasonably requested by Purchaser and customary for financings similar to the Financing; (vii) subject to the occurrence of the Closing, otherwise reasonably facilitating the granting of a security interest (and perfection thereof) in collateral, the pay-off of Existing Debt and the release of related Liens, guarantees and other security interests, in each case as may be reasonably requested by Purchaser and customary for financings of a type similar to the Financing; (viii) at times and locations mutually agreed upon and upon reasonable advance notice, permitting the Financing Sources and lenders involved in the Financing to conduct due diligence, collateral audits and appraisals and evaluate the Purchased Assets for the purposes of consummating the Financing and establishing collateral arrangements as of the Closing Date(and providing all relevant information or documentation, in each case as may be reasonably requested and customary for financings of a type similar to the Financing); (ix) subject to the occurrence of the Closing, using commercially reasonable efforts to obtain waivers, consents, estoppels, approvals, authorizations and instruments, in each case as may be reasonably requested by Purchaser or Purchaser Parent shall provide and customary for financings of a type similar to the Financing (including any equity financing); and (x) taking all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreementcorporate actions, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything the occurrence of the Closing, necessary and reasonably requested by Purchaser or Purchaser Parent to permit the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any consummation of its Affiliates’ obtaining funds the Financing on the Closing Date to consummate the Merger and the transactions contemplated by this Agreement; provided, that (A) all material, non-public information regarding the Purchased Assets and Sellers and their Affiliates provided to Purchaser, Purchaser Parent, any lender or Financing Source or any other Person pursuant to this Section 6.10 that is not disclosed in the Offering Documentation shall be kept confidential by them in accordance with the terms of the Confidentiality Agreement, in the case of Purchaser or Purchaser Parent, or a confidentiality agreement on terms substantially identical to those set forth in the Confidentiality Agreement or customarily used in connection with financing transactions similar to the Financing, in the case of any other Person, and (B) none of any Seller or any of its Affiliates shall be required to (i) commit to take any action that is not contingent upon the Closing (including the entry into any agreement) or that would be effective prior to the Closing that would otherwise subject any of them to actual or potential Liability or fee, cost or expense in connection with the Financing or (ii) take any action to the extent that it would, in Sellers’ reasonable, good faith judgment, (x) unreasonably interfere with the business or operations of Sellers or their Affiliates, (y) violate any applicable Law or (z) be reasonably likely to result in the waiver of any attorney-client privilege, the unauthorized disclosure of any trade secrets of third parties or the breach of any applicable confidentiality obligations; provided, further, that Purchaser and Purchaser Parent shall promptly upon request by Sellers (but in any event within two (2) days of receipt of such request), reimburse Sellers for all reasonable and documented out-of-pocket third-party costs and expenses (including reasonable attorneys’ fees) incurred by Sellers and their Affiliates and each of their respective officers, directors, member of management, employees and other Representatives in connection with the cooperation contemplated by this Section 6.10. Purchaser and Purchaser Parent shall indemnify and hold harmless the Seller Indemnified Parties from and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing, including any action taken in accordance with this Section 6.10, and any information utilized in connection therewith (other than such Losses solely relating to or arising out of the gross negligence or willful misconduct of Sellers as determined by the final non-appealable judgment of a court of competent jurisdiction).
(e) Notwithstanding anything in this Agreement to the contrary, the Parties acknowledge and agree that Purchaser’s obligation to consummate the transactions contemplated by this Agreement shall not be conditioned on Purchaser’s or Purchaser Parent’s receipt of the proceeds of the Financing or any other financing undertaken in connection therewith and Purchaser and Purchaser Parent reaffirm their obligations to consummate the transactions contemplated by this Agreement on the terms and subject to the conditions set forth herein, regardless of the availability of, or the ability to obtain, the Financing or the compliance by Sellers with the provisions of this Section 6.10.
Appears in 1 contract
Sources: Asset Purchase Agreement (Concordia Healthcare Corp.)
Financing. (a) Subject Parent shall use its commercially reasonable efforts to (i) maintain in effect the Commitment Letters and to satisfy on a timely basis all the conditions to obtaining the financing for the Transactions (the "Financing") set forth therein (including by consummating the equity financing pursuant to the terms and conditions of this Agreementthe Equity Commitment Letter), Parent shall use its reasonable best efforts (ii) enter into definitive financing agreements with respect 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 on the terms and conditions described in as contemplated by the Debt Commitment Letter pursuant to and (iii) consummate the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under Financing at the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunderClosing. Parent and Merger Sub shall not, without the Company’s prior written consent, not permit any amendment, supplementmodification or waiver, replacement or modification in each case, that is materially adverse to the Company to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding Commitment Letters without first consulting with the Company, and will obtain the Company's prior written consent (which consent shall not be unreasonably withheld, conditioned or otherwise expands any of the conditions delayed) prior 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 agreeing to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacementwaiver. To the extent actually known by Parent and Merger Sub, Parent and Merger Sub will keep the Company (x) fully informed of any material breaches by any party of the Commitment Letters or any termination of the Commitment Letters and (y) upon the request of the Company at any time, reasonably informed of the status of the financing process.
(b) Parent shallThe Company shall provide, and shall use its commercially reasonable efforts to cause its Affiliates subsidiaries and the Company Representatives toto provide, use its all reasonable best efforts (A) to maintain cooperation in effect connection with the Debt Commitment Letter (provided that arrangement of the Debt Commitment Letter may be amendedFinancing including, supplemented, replaced, modified or waived as provided in this Section 6.13)without limitation, (Bi) promptly providing to negotiate and enter into definitive agreements Parent's financing sources all material financial information in their possession with respect to the Debt Commitment Letter Company and the Transactions as reasonably requested by Parent or Parent's financing sources, including, but not limited to, information and projections prepared by the Company relating to the Company and the Transactions, provided such financing sources shall be deemed to be one of Parent's "representatives" under the Confidentiality Agreement and subject to all obligations imposed therein upon a "representative," (ii) making the “Debt Financing Agreements”Company's senior officers and other Company Representatives reasonably available to Parent's financing sources in connection with such Financing, to reasonably participate in due diligence sessions and to reasonably participate in presentations related to the Financing, including, without limitation, presentations to rating agencies and (iii) on the terms and conditions that are not materially less favorable to Parent than those contained reasonably assisting in the Debt Commitment Letterpreparation of one or more appropriate offering documents and assisting Parent's financing sources in preparing other appropriate marketing materials, in each case to be used in connection with the Financing. The Company shall provide the same cooperation at Parent's request in connection with the Sale-Leaseback or similar transaction with respect to real property owned by the Company (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner it being understood that will any such transaction would not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt 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, to consummate the Debt Financing at or be consummated prior to the Closing, (D) to comply with its obligations under Closing without the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding mutual agreement of the Debt Financing will be, satisfied, Parent Company and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing AgreementsParent).
(c) Without limiting If the foregoingCommitment Letters are terminated, Parent agrees and Merger Sub shall use commercially reasonable efforts to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent commitments for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together alternative financing with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with persons or modify the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent capital structure set forth in the Debt Commitment Letter, Letters provided the total committed equity financing shall not be materially less beneficial to supplement Parent or replace the Debt Financing Company and shall not be less than the amount set forth in the Equity Commitment Letter (“Alternative Debt Financing”). True, correct it being understood that Parent and complete copies of each Merger Sub shall provide prompt notice to the Company upon obtaining any such alternative financing commitments); provided, that Parent and Merger Sub shall be under no obligation to obtain or seek to obtain any financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely containing terms or funding conditions less favorable to Parent or Merger Sub than those included in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectLetters.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject The Purchaser shall, and shall cause its Affiliates to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to (i) take, or cause to be taken, all actions and to appropriate action, do, or cause to be done, all things necessary, proper or advisable or proper to arrange (including accepting any terms and obtain conditions required by the Lenders in connection with the Debt Commitment Letters and the Debt Financing Agreements that are commercially reasonable or reasonably consistent with market practices), and execute and deliver, or cause to be executed and delivered, such definitive agreements, instruments and other documents (collectively, the “Debt Financing Agreements”), in each case, as may be required, to arrange the Financing as promptly as practicable after the date hereof on the terms and subject only to the conditions described contained in the Debt Commitment Letter pursuant Letters or on other terms acceptable to the terms thereof Purchaser so long as the Debt Financing Agreements are in a form that is otherwise not reasonably likely to materially impair or delay the funding of the Financing or the Closing, (including any “market flex” provisionsii) including using its reasonable best efforts to seek to enforce its rights under maintain in effect each of the Debt Commitment Letter in Letters and the event of a breach thereof by the financing provider(sDebt Financing Agreements, (iii) thereunder. Parent shall not, without the Company’s prior written consent, not permit any amendmenttermination, supplement, replacement amendment or modification to be made to, or any waiver of any provision under, the or any replacement of, any Debt Commitment Letter Letter, Debt Financing Agreement or any fee or other agreement relating thereto if such termination, amendment, supplementmodification, replacement, modification waiver or waiver replacement (A) reduces the aggregate amount of the cash proceeds from Financing to the Debt Financing extent the Purchaser would not be able to fund the Closing Date Payment and all fees, expenses and other amounts contemplated to be paid by the Purchaser on the Closing Date pursuant to this Agreement or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 any of the Debt Commitment Letter Letters or the Debt Financing Agreements, in a manner that would reasonably be expected to (x1) delay delay, prevent or prevent make less likely the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, Date or (y2) adversely affect impact the ability of Parent the Purchaser to enforce its rights against other parties to the Debt Commitment Letter Letters or the definitive agreements Debt Financing Agreements with respect thereto 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 delay or prevent the Closing). Parent shall promptly deliver iv) satisfy on a timely basis all conditions applicable to the Company true, complete and correct copies of any such amendment, modification Purchaser or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), Letters and 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 Debt Financing at the Closing set forth therein that are within its control or subject to its influence andAgreements, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to (v) consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letters and the Debt Financing Agreements at or prior to the Closing and (vi) in the event that all conditions in the Debt Commitment Letters and the Debt Financing Agreements have been satisfied, cause the Lenders to fund on or prior to the Closing Date the Financing required to consummate the transactions contemplated hereby.
(b) The Purchaser will keep the Seller apprised on a prompt and timely basis of all material developments or changes relating to the Financing, the Debt Commitment Letters and the Debt Financing Agreements. In the event that any Debt Commitment Letter on or Debt Financing Agreement ceases to be in full force and effect at any time in any material respect, there are any material developments related to the Financing, or the Lenders indicate any unwillingness to provide the Financing, or for any reason the Purchaser otherwise no longer believes in good faith that it will be able to obtain the Financing, then the Purchaser will notify the Seller within one Business Day and use its reasonable best efforts to obtain replacement financing arrangements or commitment letters (the “Alternative Financing”) as soon as reasonably practicable from alternative sources in an amount sufficient to consummate the transactions contemplated by this Agreement with terms and conditions, taken as a whole, not less favorable to the Purchaser (including conditions to closing of the Financing), than the terms and conditions set forth thereinin each of the Original Debt Commitment Letters. Parent The Purchaser shall promptly deliver to the Seller complete and correct copies of all amendments, supplements, other modifications or agreements pursuant to which any amended, supplemented, modified or replacement commitments shall provide the Purchaser with any information reasonably requested by portion of the Company relating Financing; provided, that the Purchaser may redact from any such copies the fee amounts payable to any circumstances referred to in this Section 6.13(c)its Financing sources. Parent shall The Purchaser will not, nor shall it and will not permit any of its Affiliates to, without the prior written consent of the CompanySeller, take any action or enter into any transaction transaction, including any merger, acquisition, joint venture, lease or other Contract or debt or equity financing that would reasonably be expected to materially impair, delay or prevent consummation of all the Financing or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount failure of any of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth contained in the Debt Commitment Letter, to supplement Letters or replace the Debt Financing Agreements.
(“Alternative Debt Financing”). True, correct and complete copies c) For purposes of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available underthis Agreement, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, term (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the financing contemplated by the Original Debt Commitment Letter which is not superseded Letters, as permitted by a New this Section 5.5 to be amended, modified or replaced, in connection with an Alternative Financing or otherwise, (ii) “Debt Commitment Letter at Letters” shall be deemed to include, collectively, each of the time in question and each New Original Debt Commitment Letter Letters, as permitted by this Section 5.5 to the extent then be amended, modified or replaced, in effect, connection with an Alternative Financing or otherwise and (iii) any reference in this Agreement to “fee letterDebt Financing Agreements” shall be deemed to include any fee letter relating definitive agreements, instruments or other documents entered into by the Purchaser pursuant to the a Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectLetter.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Allied Motion Technologies Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its commercially 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 or proper to arrange and obtain the Debt Equity Financing on the terms and conditions described set forth in the Debt Equity Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Letters, including using its commercially reasonable best efforts to seek (i) maintain in effect the Equity Commitment Letters until the Merger and the other transactions contemplated by this Agreement are consummated, (ii) satisfy or cause to enforce its rights under the Debt Commitment Letter be waived on a timely basis all conditions applicable to Parent set forth in the event Equity Commitment Letters or such definitive agreements that are within its control and otherwise comply with its obligations thereunder and (iii) upon the satisfaction or waiver of a breach thereof by such conditions, consummate the Equity Financing to the extent, and in the amount required, necessary to consummate the Merger and the Transactions; provided, that nothing herein shall prevent Parent from replacing all or any portion of the Equity Financing provided for in the Equity Commitment Letters with one or more commitments from Persons to provide an equal or greater amount of financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made toavailable on or prior to the Closing Date with conditionality no less favorable to Parent in any material respect than that provided for in the Equity Commitment Letters, and upon any such replacement, the definition of "Equity Commitment Letters" set forth in this Agreement shall be deemed to have been modified as appropriate to reflect such replacement debt or equity financing and any related commitment letter.
(b) Parent shall not amend, modify or waive, or agree to amend, modify or waive (in any waiver case, whether by action or inaction), any term of any provision under, the Debt either Equity Commitment Letter without the prior written consent of the Company if such amendment, supplement, replacement, modification or waiver (Ai) reduces the aggregate amount of the cash proceeds from Equity Financing available on the Debt Financing Closing Date to pay the aggregate Merger Consideration, the aggregate Conversion Amount, the aggregate Warrant Consideration and the aggregate Black-Scholes Value (unless, in the case of this clause (i), such amount is fully replaced with an amount of new financing with conditionality no less favorable to Parent in any material respect), or (Bii) imposes new or additional conditions to the initial funding or otherwise expands amends or modifies any of the conditions precedent to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter Equity Financing in a manner that would reasonably be expected to (x) materially delay or prevent the Closing, (y) make the timely funding in full of the Debt Equity Financing (or satisfaction of the conditions precedent to obtaining the Debt Financing) on the Closing Date, Equity Financing less likely to occur or (yz) adversely affect impact the ability of Parent to enforce its rights against any other parties party to the Debt Equity Commitment Letter Letters 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of in any such amendment, modification or replacementmaterial respect.
(bc) Parent shallFrom the date of this Agreement until the earlier of (x) the Effective Time and (y) the termination of this Agreement in accordance with its terms, the Company agrees to use its commercially reasonable efforts to provide such assistance and shall to cause each of its Affiliates Subsidiaries and Representatives toto provide such assistance, use in connection with any equity or debt financing to be undertaken by Parent, Merger Sub or their affiliates for the purpose of funding the Transactions and the related fees and expenses (the "Financing") as is reasonably requested by Parent. Such assistance shall include the following: (i) reasonable cooperation with the marketing by Parent and its reasonable best efforts Financing Sources of the Financing; (ii) delivery to Parent and its Financing Sources of (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements information with respect to the Debt Commitment Letter business, operations, financial condition, projections and prospects of the Company and its Subsidiaries as may be reasonably requested by Parent or its Financing Sources; and (B) customary certificates, evidence of insurance, authorization letters in connection with the “Debt Financing Agreements”marketing materials for the financing, agreements and other documents and materials by the Company and its Subsidiaries and their respective Representatives; (iii) on participation by senior management of the terms and conditions that are not materially less favorable to Parent than those contained Company in the Debt Commitment Letternegotiation of, and the execution and delivery of, the agreements, documents and certificates contemplated by the Financing, including (A) officer, secretary, solvency and perfection certificates, corporate organizational documents, good standing certificates, Lien searches, and resolutions requested by Parent or its Financing Sources; (B) documents reasonably requested by Parent or its Financing Sources relating to the repayment of existing debt; and (C) other customary documentation and other information; (iv) taking such actions as are reasonably requested by Parent or its Financing Sources to satisfy facilitate the satisfaction on a timely basis of all conditions precedent to obtaining the Financing; (v) taking all actions as may be reasonably requested by Parent or its Financing Sources in connection with the repayment of the existing indebtedness of the Company and its Subsidiaries; (vi) using its commercially reasonable efforts to cause its independent auditors to cooperate with the Financing, including by (A) providing assistance with the due diligence activities of the Financing Sources and (B) providing access to work papers of the Company and its Subsidiaries and other supporting documents as may be reasonably requested by Parent or its Financing Sources; (vii) obtain the waiver of)accountants' comfort letters, legal opinions, and other documentation and items relating to the Financing as reasonably requested by Parent (including by assisting Parent's legal counsel in a manner that will not impede the ability connection with obtaining or preparing any of the parties foregoing); (viii) using its commercially reasonable efforts to consummate provide to Parent all documentation and other information required by Regulatory Authorities or requested by the MergerFinancing Sources under applicable "know your customer" and anti-money laundering rules and regulations, all conditions to receipt of including the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence andPATRIOT Act, upon satisfaction of the conditions set forth in the Debt Commitment Lettereach case, to consummate the Debt Financing extent requested in writing at or least ten (10) Business Days prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, Closing Date; and (Evix) cooperation with Parent's Financing Sources' due diligence, to consummate the Debt extent customary or reasonable; provided, 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; provided, further, that nothing in this Agreement shall require any cooperation to the extent it would (1) require the Company, its Subsidiaries or the Company Board or the board of directors of any of the Company's Subsidiaries to waive or amend any terms of this Agreement or agree to pay any commitment, financing or other fees or reimburse any expenses prior to the Closing Date, except to the extent reimbursed by Parent; (2) require any officer of the Company or its Subsidiaries to execute or deliver any document or certificate in connection with the Financing at that is not contingent upon the Closing or that would be effective prior to the Closing (other than customary documents or certificates solely relating to the Company or its Subsidiaries); (3) require the Company or its Subsidiaries to take any action that would conflict with or violate any applicable Laws or any provision of the organizational documents of the Company, or that would result in a violation or breach of, or default under, any Material Contract in effect as of the date of any such request; or (4) result in any officer or director of the Company or its Subsidiaries incurring any personal liability in connection with the Financing; and provided, further, that neither the Company nor any of its Subsidiaries shall be required to incur any indebtedness, grant any Lien to secure indebtedness of Merger Sub or Parent, or pay any commitment fee or other fee or payment to obtain consent or incur any liability with respect to the Financing prior to the Effective Time. In , unless Parent has agreed in writing to reimburse and indemnify the Company for any such liabilities in the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time does not occur. The Company will provide to Parent and its Financing Sources such information as may be necessary so that the Debt Financing. Parent shall keep information supplied by or on behalf of the Company informed on and its Subsidiaries does not and will not contain any untrue statement of a current basis and material fact or omit to state a material fact necessary to make the statements contained therein, in reasonable detail the light of the status circumstances under which such statements are made, not misleading and will correct any such untrue statements or omissions promptly after any of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide its Subsidiaries or their respective Representatives is aware of such untrue statement or omission. The Company consents to the Company copies use of all executed Debt Financing Agreements.
(c) Without limiting of its and its Subsidiaries' logos in connection with the foregoingFinancing. Notwithstanding anything to the contrary contained in this Agreement, Parent agrees to notify no obligation of the Company promptlyor its Subsidiaries under any certificate, document or instrument entered into with respect to this Section 5.16(c) shall be effective until the Closing and in the Company and its Subsidiaries shall not be required to take any event within two (2) Business Daysaction under any certificate, if at any time document or instrument that is not contingent upon the Closing or that would be effective prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reasonother than, (ii) Parent becomes aware of any breach in each case, customary documents or default (A) by any Financing Source party certificates solely relating to the Debt Commitment Letter Company or its Subsidiaries). Parent shall indemnify, defend and hold harmless the Company and its affiliates, and their respective pre-Closing Representatives, from and against any liability, obligation or loss suffered or incurred by them in connection with the arrangement of the Financing, any information provided in connection therewith (other than arising from information provided by the Company or its Subsidiaries but including any violation of the Confidentiality Agreement) and any misuse of the logos or marks of the Company or its Subsidiaries in connection therewith, except in the event such liabilities, obligations or losses arose out of or result from the willful misconduct of the Company, any of its Subsidiaries or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth thereintheir respective Representatives. Parent shall promptly provide any information reasonably requested by reimburse the Company relating to for any circumstances referred to out-of-pocket costs and expenses incurred in this Section 6.13(c). Parent shall notconnection with the Company's, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all Subsidiaries' or any portion of the Debt Financingtheir respective Representatives' obligations under this Section 5.16.
(d) Parent acknowledges and agrees that obtaining the Financing shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior not be a condition to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion consummation of the Debt Financing by reducing commitments under Transactions, and affirms its obligations to consummate the Debt Commitment Letter; provided that Transactions (vsubject to the conditions contained in ARTICLE VI) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount irrespective and independently of the Debt Financing committed under the Debt Commitment Letter following availability of any such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by Financing. For purposes of this Agreement, (x) the proceeds term "Financing Source" means each Equity Financer and any future source of such equity or debt offerings financing, if any, that may provide financing to Parent or other incurrences have been received by Parent in cash, (y) Parent promptly notifies Merger Sub for the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectTransactions.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions (including the flex provisions) described in the Financing Letters (including, in the case of the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under Financing, alternative or additional debt financing consistent with the Debt Commitment Letter) and any related Fee Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent and Engagement Letter and shall not, without the Company’s prior written consent, permit not agree to any amendment, supplement, replacement amendment or modification to be made to, or consent to any waiver of any provision or remedy under, the Financing Letters or any Fee Letter or Engagement Letter without the prior written consent of the Company if such amendments, modifications or waivers (or, in the case of the Debt Commitment Letter if such amendmentLetter, supplement, replacement, modification alternative or waiver additional debt financing) would (Ai) reduces reduce the aggregate amount of the cash proceeds Financing (including by changing the amount of fees to be paid or original issue discount) from that contemplated in the Debt Financing Letters, or (Bii) imposes impose new or additional conditions to the initial funding or other terms or otherwise expands expand, amend or modify any of the conditions to the receipt of the Debt Financing, Financing or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter terms in a manner that would be reasonably be expected likely to (x) materially delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing DateClosing, or (y) adversely affect impact the ability of Parent or Merger Sub, as applicable, to enforce its rights against the other parties to the Debt Commitment any Financing Letter when required pursuant to this Agreement or the definitive agreements with respect thereto (providedthereto. For purposes of clarification, that the foregoing shall not prohibit Parent may amend from replacing or amending the Debt Commitment Letter and any related Fee Letter or Engagement Letter solely to add or replace additional lenders, lead arrangers, bookrunners, syndication agents or similar entities entities, so long as the addition of such action additional parties would not reasonably be expected expected, individually or in the aggregate, to (x) materially delay or prevent the Closing). , or (y) adversely impact the ability of Parent shall promptly deliver or Merger Sub, as applicable, to enforce its rights against the Company true, complete and correct copies of other parties to any such amendment, modification Financing Letter when required pursuant to this Agreement or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Timethereto. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any Any reference in this Agreement to the (A) “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter Financing Letters as amended or modified pursuant to clause in compliance with this Section 6.12 and (iiB) below, (ii) any reference in this Agreement to the “Financing Letters” or “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time such documents as amended or modified in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with this Section 6.14(a)(iii)6.12.
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (TPC Group Inc.)
Financing. (a) Subject Each of Parent and Sub shall use, and shall cause their respective Affiliates and each of its and their respective Representatives to use, their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to arrange, obtain and consummate the Debt Financing upon the terms and subject only to the conditions (including, to the extent required, the full exercise of any “flex” provisions) expressly set forth in the Debt Commitment Letters, including using reasonable best efforts (i) to maintain in full force and effect the Debt Commitment Letters in accordance with the terms thereof until the consummation of the transactions contemplated hereby, (ii) to promptly negotiate, enter into and deliver definitive agreements with respect to the Debt Financing (collectively, the “Debt Financing Agreements”) upon the terms and subject only to the conditions expressly set forth in the Debt Commitment Letters (including any applicable “flex” provisions) and further subject to any amendments, modifications or supplements thereto, or replacements or waivers thereof, in each case, not prohibited by this Agreement, (iii) to satisfy on a timely basis (but in any event, at or prior to Closing) all conditions to the funding of the full amount of the Debt Financing that are within Parent’s or Sub’s control, and (iv) to enforce its rights under or with respect to the Debt Commitment Letters and the Debt Financing Agreements.
(b) Neither Parent nor Sub shall permit any amendment, supplement or other modification to, or grant any waiver of any terms under, the Debt Commitment Letters, in each case without the prior written consent of the Company (not to be unreasonably withheld, conditioned, or delayed), if such amendment, supplement, or other modification or waiver would or would reasonably be expected to (A) reduce the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount) to an amount that, when taken together with the proceeds of the Equity Financing (including any increases to the Equity Financing), would be less than the Required Amount, (B) impose new or additional conditions to the funding of the full amount of the Debt Financing on the Closing Date (or otherwise expand or modify any existing condition to the funding of the Debt Financing set forth in the Debt Commitment Letters) in a manner that could prevent, impede or delay the consummation of the Debt Financing on the Closing Date, or (C) (i) prevent, impede or delay the consummation of the Debt Financing on the Closing Date, or (ii) adversely impact the ability of Parent to enforce its rights under the Debt Commitment Letters or the Debt Financing Agreements; provided that Parent and Sub may amend, supplement, replace, substitute or modify the Debt Commitment Letters to the extent not prohibited by this Section 6.11(b) (including to add additional agents, co-agents, lenders, lead arrangers, joint bookrunners, syndication agents, managers or similar entities that have not executed such Debt Commitment Letters as of the date hereof, together with any conforming or ministerial changes related thereto). Parent shall deliver to the Company copies of any amendment, supplement or other modification, or waiver of any terms under, to the Debt Commitment Letters, promptly (and in any event within two business days) following receipt.
(c) Upon reasonable request of the Company, Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Debt Financing; provided, however, that nothing in this sentence shall require Parent to disclose any information that is legally privileged or the disclosure of which would result in the breach of any of Parent or Sub’s, as applicable, confidentiality obligations set forth in the Debt Commitment Letters (as in effect on the date hereof). Without limiting the generality of the foregoing, Parent and Sub shall give the Company prompt written notice (and in any event within three business days following becoming aware thereof) (w) of any actual or alleged 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 Parent or Sub, or to the knowledge of Parent or Sub, any other person party to any of the Debt Commitment Letters or the Debt Financing Agreements, (x) of the receipt of any written notice or other written communication from any Debt Financing Source with respect to any actual or alleged breach, default, termination or repudiation by any party to any of the Debt Commitment Letters or any Debt Financing Agreement or any provisions of the Debt Commitment Letters or any Debt Financing Agreements (including any actual withdrawal, termination or any material change in the terms of (including the amount of) the Debt Financing), (y) of any material dispute or disagreement between or among the parties to any of the Debt Commitment Letters or the Debt Financing Agreements with respect to the obligation to fund the Debt Financing or the amount of the Financing to be funded at Closing, or (z) if any time for any reason either Parent or Sub believes in good faith that it will not be able to (or is not reasonably likely to be able to) obtain, all or any portion of the Debt Financing upon the terms and subject only to the conditions expressly set forth in the Debt Commitment Letters in the manner or from the sources contemplated by any of the Debt Commitment Letters or the Debt Financing Agreements. As soon as reasonably practicable, but in any event within two (2) business day of the date the Company delivers to Parent or Sub a written request therefor, Parent and Sub shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause (w), (x), (y) or (z) of the immediately preceding sentence or the status of the Debt Financing.
(d) If any portion of the Debt Financing otherwise becomes unavailable, and such portion is required to fund the Required Amount on the Closing Date, Parent and Sub shall, and shall cause their Affiliates to, use its their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and consummate, at its sole expense, in replacement thereof alternative financing from the same or proper alternative sources in an amount that, when taken together with the proceeds of the Equity Financing (including any increases to arrange and obtain the Debt Financing Equity Financing), is sufficient to fund the Required Amount on the terms and conditions described not less favorable, taken as a whole, to the Company or Parent (in the reasonable judgment of Parent) than the terms set forth in the Debt Commitment Letter pursuant to the terms thereof Letters (including the flex provisions thereof) as promptly as reasonably practicable following the occurrence of such event (the “Alternative Financing”). Any reference in this Agreement to (1) the “Debt Financing” shall include any such Alternative Financing, (2) the “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in Letters” shall include the event of a breach thereof by commitment letters and the financing provider(scorresponding fee letter with respect to any such Alternative Financing, (3) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the “Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or Agreements” shall include the definitive agreements with respect thereto to any such Alternative Financing and (provided4) the “Debt Financing Sources” shall include the financing institutions contemplated to provide any such Alternative Financing. Notwithstanding anything to the contrary contained in this Agreement, that nothing contained in this Section 6.11 (d) shall require, and in no event shall the reasonable best efforts of Parent may amend or Sub be deemed or construed to require, either Parent or Sub to pay any fees or any interest rates applicable to the Debt Financing in excess of those contemplated by the Debt Commitment Letter Letters (including the flex provisions), but other than de minimis amounts, or agree to add terms (including the flex provisions) that are less favorable, taken as a whole, to Parent, Sub or replace lendersthe Surviving Corporation than the terms contemplated by the Debt Commitment Letters (determined after giving effect to all amendments and other modifications permitted pursuant to the “market flex” provisions of the Debt Commitment Letters as if such amendments and other modifications had been implemented to the maximum extent permitted thereunder) (in either case, lead arrangers, bookrunners, syndication agents whether to secure waiver of any conditions contained therein or similar entities so long as such action would not reasonably be expected to delay or prevent the Closingotherwise). Parent shall promptly deliver to the Company true, correct and complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt agreements related to such Alternative Financing Agreements.
(cincluding commitment letters, engagement letters, side letters and fee letters (subject to customary redaction of fee amounts and other commercially sensitive economic terms, so long as such redactions do not extend to any terms that could affect the conditionality, availability, amount, timing or termination of the Financing)) Without limiting the foregoing, Parent agrees to notify the Company promptly, promptly (and in any event within two business days) following execution thereof. Parent and Sub acknowledge and agree that the obtaining of the Financing, or any Alternative Financing, is not a condition to Closing.
(e) Prior to the Closing, the Company shall use reasonable best efforts to provide to Parent and Sub, and shall cause each of its Subsidiaries to use reasonable best efforts to provide, and shall use its reasonable best efforts to cause its Representatives, including legal and accounting, to provide, in each case, at the sole cost and expense of Parent and Sub, all cooperation reasonably requested in writing by Parent and Sub that is customary in connection with arranging, obtaining and syndicating debt financings similar to the Debt Financing, including using reasonable best efforts to: (i) assist with the preparation of Offering Documents; (ii) furnish to Parent as promptly as reasonably practicable with the Required Information and all other available pertinent financial information relating to the Company and the Company Subsidiaries (including their businesses, operations, financial projections and prospects) as may be reasonably requested by Parent to assist in preparation of the Offering Documents; (iii) having the Company designate members of senior management of the Company to execute customary authorization letters with respect to the Offering Documents and upon reasonable written notice, participate in a reasonable number of meetings and presentations to or with prospective lenders, due diligence sessions (including requesting accountants to participate in such due diligence sessions), drafting sessions and sessions with ratings agencies in connection with the Debt Financing, including direct contact between appropriate members of senior management of the Company and the Company Subsidiaries and Parent’s Debt Financing Sources and other potential lenders in the Debt Financing (all such meetings, presentations or sessions may be teleconferences in lieu of such meetings); (iv) requesting the Company’s independent auditors to cooperate with Parent’s reasonable best efforts to obtain customary accountant’s comfort letters (including “negative assurance”) and consents from the Company’s independent auditors; (v) reasonably assist Parent in obtaining any corporate and family ratings from any ratings agencies contemplated by the Debt Commitment Letters; (vi) assist in the preparation, registration or execution of, definitive financing documents, including guarantee and collateral documents, customary closing certificates (including a certificate of an appropriate officer of the Company with respect to solvency of the Company and the Company Subsidiaries to the extent required by, or necessary to satisfy conditions precedent under, the Debt Commitment Letters), instruments, filings, security agreements and other documents as may be reasonably requested by Parent and other matters ancillary to, or required in connection with the Debt Financing to the extent required on the Closing Date by the terms of the Debt Commitment Letters (but in no event shall Company be required to execute documents or arrangements that would be effective prior to Closing); (vii) assist with requesting from the Company’s existing lenders the Payoff Letter (including the lien releases referenced therein); and (viii) furnish to Parent at least four (4) business days prior to the Closing Date to the extent reasonably requested by Parent within 10 business days prior to the Closing Date (1) all documentation and other information about the Company and its Subsidiaries customarily required by Governmental Entities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended) and (2) Business Daysif the Company qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”), if a certification regarding individual beneficial ownership solely to the extent required by the Beneficial Ownership Regulation in relation to the Company. Notwithstanding anything to the contrary in this Agreement, (i) the Company and the Company Subsidiaries shall not be required to provide any cooperation pursuant to this Section 6.11 (e) to the extent it would unreasonably interfere with the business or ongoing operations of the Company or its Subsidiaries, (ii) the Company and the Company Subsidiaries shall not be required to pay any commitment or other similar fee or incur any other liability (including due to act or omission by the Company, its Subsidiaries or any of the their respective Affiliates or Representatives), or expenses (including reasonable attorney’s and accounting fees) or give any indemnity in connection with the Debt Financing (other than expenses promptly reimbursed by Parent at or prior to Closing in accordance with the terms of this Section 6.11), (iii) none of the Company or any of its Subsidiaries, or any Persons who are directors of the Company or any of its Subsidiaries at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware that do not continue in such role as of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably Closing shall be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with pass resolutions or consents to approve or authorize the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount execution of the Debt Financing, together with other cash (iv) the Company and cash equivalents available to Parent, is sufficient to pay all amounts the Company Subsidiaries shall not be required to provide any cooperation pursuant to this Section 6.11 (e) to the extent it would (A) cause any covenant, representation or warranty in this Agreement to be paid breached (unless otherwise agreed or waived by the parties hereto in accordance with this Agreement); (B) cause any closing condition set forth in Article VII to fail to be satisfied or otherwise cause the breach of this Agreement or any Contract to which the any of the Company or its Subsidiaries is a party; (C) require any officer, director or other Representative of the Company or any of its Subsidiaries to deliver any certificate that such officer, director other Representative believes, in good faith, contains any untrue certifications or requires the Company or its Subsidiaries to give or deliver any legal opinion or other opinion of counsel; (D) require the Company or its Subsidiaries to provide any information that is prohibited or restricted by applicable Law or applicable confidentiality undertaking or that constitutes privileged information or attorney-client work product (provided that the Company, its Subsidiaries or any of its or their respective officers, employees, advisors and other Representatives shall take reasonable measures to permit access or disclosure in compliance hereunder in a manner that avoids any such harm or consequence); or (E) require the Company or its Subsidiaries to take any action that is prohibited or restricted by, or will conflict with or violate, its organizational documents, or would result in a violation or breach of, or default under, any agreement or Contract to which the Company or any of its Subsidiaries is a party. Parent and Sub agree that any information regarding the Company or any of its Subsidiaries or Affiliates contained in any Offering Document or other materials in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable Debt Financing shall be subject to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.prio
Appears in 1 contract
Sources: Merger Agreement (Virtusa Corp)
Financing. (ai) Subject to the terms and conditions of this Agreement, each of Parent and Purchaser 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, advisable or proper to arrange and obtain the Debt Transaction Financing on the terms and conditions (including the flex provisions and taking into account the Marketing Period) described in the Debt Commitment Letter pursuant to and the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Equity Commitment Letter in at the event of a breach thereof by Acceptance Time (taking into account the financing provider(s) thereunder. Parent Marketing Period), and shall not, without the Company’s prior written consentconsent of the Company, permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendmentor the Equity Commitment Letter, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 or make less likely the funding in full of the Transaction Financing contemplated by the Debt Financing Commitment Letter and the Equity Commitment Letter (or satisfaction of the conditions precedent to the Debt Transaction Financing) on the Closing Date, Date in any material respect or (y) adversely affect extend or permit the ability extension of Parent to enforce its rights against other parties to the Marketing Period or Minimum Notes Marketing Period (in each case as defined in the Debt Commitment Letter or Letter) (provided that, without the definitive agreements with respect thereto (providedconsent of the Company, that Parent may amend the Debt Commitment Letter (A) to favorably modify pricing terms or add or replace additional lenders, lead arrangers, bookrunners, syndication bookrunners and agents or similar entities so long as such action would not reasonably be expected (B) to delay implement or prevent exercise any of the Closing“market flex” provisions (including pricing terms) contained in the fee letter executed in connection with the Debt Commitment Letter). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. For purposes of this Section 8.11, references to “Transaction Financing” shall include the Transaction Financing contemplated by the Debt Commitment Letter and the Equity Commitment Letter as permitted to be amended, modified or replaced by this Section 8.11(a) and references to “Debt Commitment Letter” and/or “Equity Commitment Letter” shall include such documents as permitted to be amended, modified or replaced by this Section 8.11(a). Notwithstanding anything to the contrary contained in this Agreement, Parent and Purchaser shall have the right to substitute other debt or equity financing for all or any portion of the Transaction Financing contemplated by the Debt Commitment Letter and/or the Equity Commitment Letter from the same and/or alternative Debt Financing Sources and/or Equity Financing Sources so long as such substitute financing would not materially and adversely impact the ability of Parent and Purchaser to consummate the transactions contemplated by this Agreement on a timely basis.
(bii) Each of Parent shall, and Purchaser shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that and the Debt Equity Commitment Letter may be amended, supplemented, replaced, modified or waived as provided (except to the extent replaced in this accordance with Section 6.138.11(a), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (and the “Debt Financing Agreements”) on Equity Commitment Letter consistent in all material respects with the terms and conditions that are not materially less favorable to Parent than those (including the flex provisions and taking into account the Marketing Period) contained in the Debt Commitment Letter and the Equity Commitment Letter (or on terms no less favorable (taken as a whole) to Parent and Purchaser than the terms and conditions (including flex provisions) in the Debt Commitment Letter and the Equity Commitment Letter), (C) to satisfy on a timely basis (or obtain the waiver of), and in ) on a manner that will not impede the ability of the parties to consummate the Merger, timely basis all conditions precedent to receipt of the full amount of the Debt 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 funding in the Debt Commitment Letter, Letter and the Equity Commitment Letter and such definitive agreements thereto (taking into account the Marketing Period and other than any condition where the failure to be so satisfied is a direct result of the Company’s failure to furnish information described in Section 8.11(b)) that are within Parent’s control so as to consummate the Debt Transaction Financing at or prior to the Closing, Acceptance Time and (D) to comply with enforce its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and the Equity Commitment Letter and such definitive financing agreements and to fund on or before the Effective Time the Debt Financingthereto. Parent shall keep the Company reasonably informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, Transaction Financing and provide to the Company copies of all executed Debt Financing Agreements.
(c) the material definitive agreements for the Transaction Financing. Without limiting the generality of the foregoing, Parent agrees to notify shall give the Company promptly, and in any event within two prompt notice (2x) Business Days, 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 or default (A) by any Financing Source party to any of the Debt Commitment Letter or the Equity Commitment Letter or definitive agreements related to the Transaction Financing of which Parent becomes aware, (y) of the receipt of (I) any written notice or (II) other written communication, in each case from any Debt Financing Agreement Source or (B) Equity Financing Source with respect to any other actual or potential material breach, default, termination or repudiation by any party to any of the Debt Commitment Letter or the Equity Commitment Letter or definitive agreements related to the Transaction Financing of any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability provisions of the Debt Financing Commitment Letter or the Equity Commitment Letter or definitive agreements related to the Transaction Financing, and (iiiz) a counterparty indicates if at any time for any reason Parent believes in writing or orally good faith that it will not provide, or it refuses be able to provide, obtain all or any portion of the Debt Transaction Financing on the terms and conditions, in the manner or from the sources contemplated by any of the Debt Commitment Letter on and the terms set forth thereinEquity Commitment Letter or definitive agreements related to the Transaction Financing. As soon as reasonably practicable after any notice by Parent to the Company of the type described in the immediately preceding sentence, but in any event within two Business Days of the date the Company delivers to Parent a written request, Parent shall promptly use reasonable best efforts to provide any information reasonably requested by the Company relating to any circumstances circumstance referred to in this Section 6.13(cclause (x). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent (y) or (z) of the Company, take immediately preceding sentence; provided that Parent need not provide any action information the disclosure of which could result in the loss of attorney-client privilege or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation is requested for purposes of litigation. If all or any portion of the Transaction Financing becomes unavailable for any reason, and such portion is reasonably required to pay the aggregate Offer Consideration and Merger Consideration, repay the Retired Debt Financing.
and pay all fees, expenses and other amounts contemplated to be paid by Parent, Purchaser and the Surviving Corporation pursuant to this Agreement, Parent, Purchaser and the Surviving Corporation shall use their reasonable best efforts to arrange and obtain in replacement thereof alternative debt and/or equity Transaction Financing from alternative sources in an amount sufficient, when taken together with available cash of Parent and any then-available Transaction Financing pursuant to the Debt Commitment Letter and the Equity Commitment Letter, to consummate the Offer and the Merger, with such alternative Transaction Debt Financing or Transaction Equity Financing having terms and conditions not materially less favorable (dtaken as a whole) to Parent and Purchaser than the terms and conditions (taken as a whole) set forth in the Debt Commitment Letter and the Equity Commitment Letter, as promptly as reasonably practicable following the occurrence of such event. Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior deliver to the Closing from consummated offerings Company true and complete copies of all commitment letters and fee letters (as redacted in a customary manner to remove the fee amounts, pricing caps, the rates and amounts included in the “market flex” and certain other terms (none of which could reasonably be expected to adversely affect the conditionality, enforceability, termination or other incurrences aggregate principal amount of debt (including notesthe Transaction Financing)) by Parent for all or pursuant to which any such alternative source shall have committed to provide any portion of the Debt Financing Transaction Financing. Notwithstanding anything in this Section 8.11 or elsewhere in this Agreement to the contrary, in no event shall the “reasonable best efforts” of Parent and Purchaser be deemed or construed to require any such Person to, and no such Person shall be required to, pay any financing fees in the aggregate in excess of those contemplated by reducing commitments under the Debt Commitment Letter and the Equity Commitment Letter; provided , or agree to conditionality or economic terms of the financing that are (vother than as specified in the preceding sentence) materially less favorable than those contemplated by the Debt Commitment Letter and the Equity Commitment Letter or any related fee letter (including any “flex” provision therein).
(b) With respect to the Transaction Financing, prior to the Acceptance Time, the Company shall, and shall cause its Subsidiaries to, and use reasonable best efforts to cause its and the Company’s Subsidiaries’ respective Representatives to provide to Parent such cooperation in connection with the Transaction Financing as may be reasonably requested by Parent, including:
(i) assisting in preparation for and participation, upon reasonable advance notice, in a reasonable number of meetings and calls (including customary one-on-one meetings with parties acting as lead arrangers, bookrunners or agents for, and prospective lenders of, the Transaction Financing), drafting sessions, rating agency presentations, road shows and due diligence sessions (including accounting due diligence sessions), in each case taking into account the affected personnel’s other professional obligations, and assisting Parent in obtaining ratings in respect of Parent and public ratings in respect of any debt issued as part of the Transaction Financing from Standard & Poor’s Financial Services LLC and ▇▇▇▇▇’▇ Investors Service, Inc.;
(ii) assisting Parent and its potential financing sources in the preparation of (A) customary offering documents, private placement memoranda, bank information memoranda, prospectuses and similar marketing documents for any of the Transaction Financing (including the provision of “backup” support), including the execution and delivery of customary representation or authorization letters in connection with bank information memoranda authorizing the distribution of information to prospective lenders and identifying any portion of such information that constitutes material, nonpublic information regarding the Company or the Company’s Subsidiaries or their respective securities (in each case in accordance with customary syndication practices) and containing a representation that the public-side version does not include material non-public information about the Company and its Subsidiaries or their securities and (B) customary materials for rating agency presentations for the Transaction Financing;
(iii) delivering to Parent the Required Financial Information;
(iv) delivering to Parent and their potential financing sources as promptly as reasonably practicable (x) such information as may be reasonably necessary for the Required Financial Information to remain Compliant and (y) such other pertinent financial and other customary information (including assistance with preparing projections, financial estimates, forecasts and other forward-looking information) to the extent reasonably requested by Parent in connection with the preparation of the offering or other incurrence information documents to be used for the Transaction Financing and identified in paragraphs 10 and 11 of debt does not result in a breach or default under, or violation of, Exhibit D to the Debt Commitment Letter, as applicable, and assisting Parent in preparing pro forma (wA) the aggregate amount balance sheets and related notes as of the Debt Financing committed under most recently completed interim period, and (B) income statements and related notes for the most recently completed fiscal year, for the most recently completed interim period and for the most recently completed twelve month period for the end of such most recently completed interim period, in each case prepared after giving effect to the transactions described in the Debt Commitment Letter following as if such reduction, together with transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statements of income) and any other cash and cash equivalents available to Parent, is sufficient to pay all amounts pro forma financial information required to be paid by Regulation S-X in connection with the transactions contemplated by this AgreementTransaction Financing; provided that none of the Company, (x) any of the proceeds Company’s Subsidiaries or any of such debt offerings or other incurrences have been received by Parent their Representatives shall be responsible in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification any manner for information relating to the Debt Commitment Letter relating thereto will be promptly provided proposed debt and equity capitalization that is required for such pro forma financial information;
(v) using commercially reasonable efforts to cause its independent registered public accounting firm for the Company. If commitments under the Debt Commitment Letter have been reduced Transaction Financing, to zero cooperate with Parent in connection with the preceding sentenceTransaction Financing, including, but solely for the obligations Transaction Financing, by (x) assisting with the due diligence activities of Parent and the Financing Sources and (y) providing customary “comfort letters” (including customary “negative assurances”) and to provide customary consents to the inclusion of audit reports in any relevant offering documents and marketing materials;
(vi) using commercially reasonable efforts to ensure that the Transaction Financing benefits from the existing lending relationships of the Company and its Subsidiaries pursuant the Company’s Subsidiaries;
(vii) assisting to Section 6.14 shall no longer be in effect. Further, Parent shall have identify the right to substitute commitments in respect of other financings steps for all or any portion repayment on the Closing Date of the Credit Facility, Company Bonds and other Retired Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt FinancingCompany or the Company’s Subsidiaries other than indebtedness which may be mutually agreed and cooperating with any back-stop, together with other cash “roll-over” or termination of any existing letters of credit thereunder (and cash equivalents available the release and discharge of all related Liens and security interests), by providing to ParentParent at least three (3) Business Days prior to Closing customary pay-off letters (in substantially final form, is sufficient taking into account any final interest calculations the lenders might need to pay all amounts required conduct to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable finalize closer to the Company thanClosing);
(viii) the conditions precedent subject to customary SunGard provisions with respect to limited conditionality and certain funds set forth in the Debt Commitment Letter, deliver possessory collateral contemplated thereby on the Closing Date;
(ix) at least three (3) Business Days prior to supplement or replace the Debt Financing (“Alternative Debt Financing”). Trueexpected Closing Date, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with provide all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions documentation and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided information relating to the Company and the Company. In ’s Subsidiaries that the event any New Debt Commitment Letter Financing Sources reasonably determine is obtained, (i) any reference in this Agreement to required by applicable “know your customer” and anti-money laundering rules and regulations including the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter USA PATRIOT Act to the extent then in effect, and reasonably requested by Parent at least ten (iii10) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating Business Days prior to the Debt Commitment Letter expected Closing Date; and
(x) reasonable participation by senior financial officers of the Company and its Subsidiaries in the negotiation of the definitive documentation for the Transaction Financing.
(c) The Company hereby consents to the use of all of its and the Company’s Subsidiaries’ logos in connection with the Transaction Financing; provided that such logos are used solely in a manner that is not superseded by intended to or reasonably likely to harm or disparage the Company or the Company’s Subsidiaries or the reputation or goodwill of the Company or any New Debt Commitment Letter at of the time in question Company’s Subsidiary; and each New Debt Commitment Letter subject to the extent then in effect.
(e) On the Closing Dateprior review by, Parent shall provide all funds required to effect the repayment of all indebtedness under and consent of, the Company Credit Agreement (such consent not to be unreasonably withheld, conditioned or delayed). Notwithstanding any other provision set forth herein or in full any other agreement between Parent and the Company (or their respective Affiliates), the Company agrees that Parent and its Affiliates may share customary projections with respect to the Company and its business, which are approved for distribution by the Company, with their potential financing sources and other prospective lenders in accordance connection with any marketing efforts in connection with the Company Credit Agreement, subject Transaction Financing; provided that the recipients of such information agree to compliance with Section 6.14(a)(iii).
(f) customary confidentiality arrangements. Notwithstanding anything to the contrary contained hereinin this Agreement, Parentnone of the Company, any of the Company’s obligations hereunder are not subject to a condition regarding Parent’s Subsidiaries or any of its Affiliates’ obtaining funds or their respective directors or officers or other personnel shall be required by this Section 8.11 to consummate take any action or provide any assistance that unreasonably interferes in any material respect with the Merger ongoing operations of the Company and the transactions contemplated by this Agreement.Company’s Subsidiaries, or would cause a breach or violation of any Law, Contract or permit, or to execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing Date
Appears in 1 contract
Sources: Merger Agreement (Time Inc.)
Financing. (a) Subject Each of Parent and Merger Sub shall, and Parent shall cause Merger Sub to, use reasonable best efforts to do, or cause to be done, all things necessary, proper or advisable to obtain the proceeds of the Financing on terms (including the “market flex” provisions) and conditions no less favorable to Parent than those described in the Commitment Letters, including using reasonable best efforts, after the date of this Agreement and prior to the earlier of the Closing Date and the date this Agreement is terminated in accordance with its terms, to:
(i) negotiate definitive financing agreements with respect to the Financing (the “Definitive Financing Agreements”) on terms and conditions no less favorable to Parent than those contained in the Commitment Letters (including any “market flex” terms and conditions), provided, however, that in no event shall any of the Definitive Financing Agreements (A) reduce the aggregate amount of the Financing provided for in the Commitment Letters (including by changing the amount of fees or original issue discount contemplated by the Commitment Letters) such that Parent would not have sufficient cash proceeds to permit Parent to pay the Required Amount on the Closing Date; (B) expand the conditions or other contingencies relating to the receipt or funding of the Financing beyond those expressly set forth in the Commitment Letters, amend or modify any of such conditions or other contingencies or impose any new or additional condition or other contingency relating to the receipt or funding of the Financing, in each case, in a manner that would reasonably be expected to (x) make the funding of the Financing (or the satisfaction of the conditions to obtaining the Financing) less likely to occur or (y) materially delay or prevent the Closing; (C) contain terms (other than those terms expressly set forth in the Commitment Letters) that could reasonably be expected to materially delay the Effective Time or the date on which the Financing would be obtained or make the timely funding of the Financing less likely to occur; or (D) adversely impacts the ability of Parent or Merger Sub to enforce its rights against any of the other parties to the Commitment Letters or Definitive Financing Agreements;
(ii) enter into Definitive Financing Agreements with respect thereto and consummate the Financing contemplated by the Commitment Letters substantially concurrently with the Closing;
(iii) satisfy on a timely basis (taking into account the anticipated timing of the Marketing Period and the Closing) or obtain the waiver of all covenants and conditions in the Commitment Letters and the Definitive Financing Agreements that are within Parent’s control;
(iv) pay in a timely manner any commitment or other fees that are or become payable under any of the Commitment Letters or Definitive Financing Agreements on or following the Date of this Agreement;
(v) enforce its rights under the Commitment Letters and Definitive Financing Agreements; and
(vi) use its reasonable best efforts to cause the Financing to be funded in full substantially concurrently with the Closing.
(b) Parent will furnish promptly upon request correct and complete copies of all material Definitive Financing Agreements to the Company. Without limiting any of its obligations hereunder, Parent shall keep the Company informed in writing upon request on a reasonably current basis in reasonable detail with respect to the status of the Financing. Without limiting the foregoing, Parent shall give the Company and the Company’s legal counsel reasonable opportunity to review and comment upon drafts of all commitment letters and Definitive Financing Agreements, and shall give due consideration to all reasonable comments and changes proposed on behalf of the Company. Without limiting the generality of the foregoing, Parent and Merger Sub shall give the Company prompt notice upon having knowledge of (i) any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) on the part of any party to any Commitment Letter or Definitive Financing Agreement, (ii) the receipt by Parent or Merger Sub of any written notice or other written communication from any Person with respect to any actual or potential material breach, default or dispute by or involving any party under any Commitment Letter or Definitive Financing Agreement, (iii) any actual or purported termination, rescission or repudiation of any Commitment Letter or Definitive Financing Agreement, or any provision thereof, (iv) any actual material dispute or disagreement with any Person expected to provide any portion of the Financing and (v) any other circumstance that could reasonably be expected to materially and adversely affect the ability of Parent to obtain, prior to the date the Closing is required to occur in accordance with this Agreement, all or any portion of the Financing on the terms, in the manner or from the sources contemplated by any of the Commitment Letters or Definitive Financing Agreements.
(c) Neither Parent nor Merger Sub shall agree to or permit any amendment or modification to be made to, or any waiver of any provision (including any termination or reduction of any commitment and/or any consent to any assignment, termination or release) or remedy under (including through the execution of any “side” letter), any Commitment Letter or Definitive Financing Agreement if such amendment, modification or waiver (i) reduces the aggregate amount of the Financing provided for in the Commitment Letters (including by changing the amount of fees or original issue discount contemplated in the Commitment Letters) such that Parent would not have sufficient cash proceeds to permit Parent to pay the Required Amount on the Closing Date or (ii) would reasonably be expected to (x) make the funding of the Financing (or the satisfaction of the conditions to obtaining the Financing) less likely to occur, (y) materially delay or prevent the Closing or (z) adversely impact the ability of Parent or Merger Sub to enforce its rights against any of the other parties to the Commitment Letters; provided that (i) Parent may replace, amend, supplement or modify the Debt Commitment Letter to add bona fide lenders, lead arrangers, bookrunners, syndication agents or similar entities (or titles with respect to such entities) that have not executed the Debt Commitment Letter as of the date of this Agreement (it being understood that the aggregate commitments of the lenders party to the Debt Commitment Letter prior to such replacement, amendment, supplement or modification may be reduced in the amount of such additional party’s binding commitments under the relevant replacement, amendment, supplement or modification, which shall otherwise contain the terms set forth in the Debt Commitment Letter immediately prior to such replacement, amendment, supplement or modification, unless any modification (other than the addition of the relevant bona fide lender, lead arranger, bookrunner, syndication agent or similar entity (or additional title)) would otherwise be permitted by the terms of this Section 6.18(c)) and (ii) Parent shall notify the Company in writing of any replacement, amendment, supplement or other modification of, or waiver of any of its rights under, any Commitment Letter reasonably promptly after the time such replacement, amendment, supplement, modification or waiver is agreed.
(d) In the event that any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (including any “market flex” provisions that are contained in the Redacted Fee Letter) (other than as a result of the Company’s failure to satisfy the conditions in Section 7.1 or 7.2), Parent will (i) use its reasonable best efforts to obtain alternative debt financing (in an amount sufficient such that the aggregate funds that would be available to Parent at the Closing will be sufficient to pay the Required Amount) (the “Alternative Financing”); provided that Parent shall not be required to arrange or obtain any Alternative Financing having terms and conditions (including “market flex” provisions), taken as a whole, less favorable to Parent than those contained in the Debt Commitment Letter (after giving effect to any “market flex” provision applicable under the Debt Commitment Letter); it being understood and agreed that in no event shall the obligation of Parent under this clause (d) require Parent to pay fees, interest rates or other amounts that, taken as a whole, exceed the aggregate fees, interest rates or such other amounts contemplated under the Debt Commitment Letter and the Redacted Fee Letter as of the date of this AgreementAgreement (including giving effect to any market flex provisions set forth therein); provided, further, that Parent shall provide the Company with a copy of, a new financing commitment letter pursuant to which any Alternative Financing shall be made available to Parent promptly after the time such agreement is agreed, to the extent needed to fund the transactions contemplated by this Agreement (the “New Commitment Letter”) (provided, that the existence and/or amount of fees, flex provisions, pricing terms, pricing caps and other commercially sensitive information set forth therein or in any fee letter may be redacted to the extent consistent with the redactions permitted by the term “Redacted Fee Letter”) which New Commitment Letter shall not include any conditions to the consummation of the Alternative Financing that are more onerous than the conditions set forth in the Debt Financing taken as a whole and (ii) if applicable, promptly notify the Company of such unavailability and the reason therefor. To the extent applicable, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable or proper to arrange promptly and obtain consummate the Debt Alternative Financing on the terms and conditions described in any New Commitment Letter. In the Debt event Alternative Financing is obtained, references in this Agreement to the Financing shall also be deemed to refer to such Alternative Financing, and if one or more commitment letters or definitive financing agreements are entered into or proposed to be entered into in connection with such Alternative Financing, references in this Agreement to the Commitment Letter Letters and the Definitive Financing Agreements shall also be deemed to refer to such commitment letters and definitive financing agreements relating to such Alternative Financing, and all obligations of Parent and Merger Sub pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent this Section 6.18 shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions applicable thereto to the initial funding or otherwise expands any of the conditions same extent as Parent’s and Merger Sub’s obligations with respect 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 .
(e) Prior to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates Subsidiaries and its and their respective Representatives to, in each case, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amendedto, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable provide to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), all cooperation reasonably requested by Parent that is reasonably necessary and in a manner that will not impede the ability customary for financings of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under type contemplated by the Debt Commitment Letter, and at Parent’s sole expense, in connection with Parent’s arrangement and obtaining the Debt Financing, including: using reasonable best efforts to:
(Ei) (x) furnish Parent (and Parent may then furnish to applicable Financing Sources) as promptly as practicable, with the Required Information and (y) furnishing any other information related to the Company and its Subsidiaries customarily delivered by a borrower and reasonably necessary for the preparation of a customary confidential information memorandum and other marketing materials used in financing of the type contemplated by the Debt Financing; provided that, notwithstanding anything to the contrary herein, a breach of this Section 6.18(e)(i)(y) shall not give rise to a failure of the condition set forth in Section 7.2(b) to consummate be satisfied unless such breach is the primary cause of the failure of the Debt Financing at to be obtained on or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding Closing Date;
(ii) cause senior management of the Debt Financing will beCompany, satisfiedwith appropriate seniority and expertise, Parent and Sub shall use their reasonable best efforts to enforce their rights underassist in preparation for, and cause participate in, a reasonable number of investor and lender meetings (including customary one-on-one meetings and calls with or by the Financing Sourcesparties acting as lead arrangers, bookrunners or agents for, and prospective lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time buyers of, the Debt Financing. Parent shall keep ) and presentations and sessions with rating agencies in each case, to the Company informed on a current basis extent required in connection with the Debt Financing;
(iii) provide assistance with the preparation of materials for rating agency presentations, bank information memoranda, syndication memoranda, lender presentations and other customary marketing materials required in reasonable detail of the status of its efforts to arrange connection with the Debt Financing, and, promptly following request by including the Company, provide execution and delivery of customary authorization letters with respect to the Company copies authorizing the distribution of all executed Debt Financing Agreements.information to prospective lenders and investors (including customary 10b-5 and material non-public information representations);
(civ) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.[reserved];
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid assist Parent in connection with the transactions contemplated by this Agreement, (x) the proceeds Parent’s preparation of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations pro forma financial statements of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt type necessary or reasonably requested by the Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required Sources to be paid included in any bank information memoranda or other customary marketing materials, including by providing such financial and other pertinent information regarding the Company and its Subsidiaries and their respective businesses as may be required in connection with the transactions contemplated by this Agreement and all conditions precedent to funding preparation of such financing are, in respect pro forma financial statements; provided that neither the Company nor any of certainty of funding, equivalent its Subsidiaries or Representatives shall be required to provide any information or assistance relating to (A) the proposed debt and equity capitalization that is required for such pro forma financial information or more favorable assumed interest rates and fees and expenses relating to such debt and equity capitalization, (B) 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 connection with the Debt Financing or (C) any information related to Parent or any of its Subsidiaries or any adjustments that are not directly related to the acquisition of the Company;
(A) assist in the preparation, execution and delivery of definitive financing documents, including any credit agreement, notes, guarantee and collateral documents, pledge and security documents, customary closing certificates and closing documents and back-up therefor and back-up for legal opinions in connection with the Debt Financing (including, if required certifications are true and correct on the Closing Date, executing and delivering a solvency certificate from the chief financial officer or treasurer (or other comparable officer) of the Company than) (in the conditions precedent set forth in form attached as Annex I to Exhibit D to the Debt Commitment Letter)) and other customary documents as may reasonably be requested by Parent or the Financing Sources and (B) facilitate the pledge of, to supplement or replace grant of security interests in and obtain perfection of any liens on collateral in connection with the Debt Financing (“Alternative Debt Financing”). True; provided, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (eachthat, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely except in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redactedcustomary authorization letters as contemplated by Section 6.18(e)(iii), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (iI) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” no liability shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under imposed on the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds Subsidiaries or any of their respective officers or employees involved prior to consummate the Merger Closing Date and (II) the transactions contemplated effectiveness thereof shall be conditioned upon, or become operative as of or after, the occurrence of the Closing;
(vii) at the reasonable request of Parent, and subject to the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), using commercially reasonable efforts to (A) file a Form 8-K with the SEC and (B) post on Debtdomain, IntraLinks, SyndTrak Online or similar electronic means, disclosing information identified by this Agreement.Parent relating to the Company for purposes of permitting such information to be included in any bank information memoranda or other customary marketing materials to be provided to potential Financing Sources who do not wish to receive material nonpublic information with respect to any of the C
Appears in 1 contract
Sources: Merger Agreement (Covetrus, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent 9.1 Investor 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 and advisable or proper to arrange consummate and obtain the Debt proceeds of the Financing prior to the Investment Closing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Letter, including using its reasonable best efforts to seek to enforce its rights under (a) maintain in effect the Debt Commitment Letter and (b) comply with its obligations in the Commitment Letter.
9.2 In the event of a breach thereof by that all conditions contained in the financing provider(s) thereunder. Parent Commitment Letter have been satisfied (or upon such funding will be satisfied), Investor shall cause the Equity Investors to fund the Financing.
9.3 Investor shall not, without the Company’s prior written consentconsent of Parent (not to be unreasonably withheld, conditioned or delayed):
(a) permit any amendment, supplementreplacement, replacement supplement or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter if such amendment, supplementmodification, replacementwaiver or remedy:
(i) would add new (or otherwise expand, modification amend or waiver modify any existing) conditions to the consummation of all or any portion of the Financing,
(Aii) reduces would reduce the aggregate amount of the cash proceeds from Financing below the Debt Financing or amount required to consummate the transactions contemplated hereby,
(Biii) imposes new or additional conditions to the initial funding or otherwise expands 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 in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect in any material respect the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter as so amended, replaced, supplemented or otherwise modified, relative to the definitive agreements with respect thereto (provided, that ability of Parent may amend to enforce its rights against such other parties to the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action in effect on the date hereof; or
(iv) would not otherwise be reasonably be expected to prevent, impede or delay or prevent in any material respect the consummation of the Investment Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.; or
(b) Parent shallterminate, and shall cause its Affiliates and Representatives toor permit the termination of, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter, unless the Commitment Letter is replaced with a new commitment that, were it structured as an amendment to an existing Commitment Letter, would satisfy the requirements of the foregoing Section 9.3(a)(i).
9.4 Investor shall provide Parent with prompt notice of (provided that a) any material breach or default by any party to the Debt Commitment Letter may be amended, supplemented, replaced, modified of which Investor becomes aware or waived as provided in this Section 6.13), (Bb) to negotiate and enter into definitive agreements the receipt of any written notice or other written communication from any financing source with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letterany breach, (C) to satisfy on a timely basis (default, termination or obtain the waiver of), and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt 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, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) repudiation by any Financing Source party to the Debt Commitment Letter or of any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financingprovision thereof.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall and Merger Sub will use its their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, on a timely basis, all things necessary, proper or advisable or proper to arrange and obtain the Debt Financing on the terms (including the “market flex” provisions) and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunderLetters. Parent shall not, without the Company’s prior written consent, and Merger Sub will not permit any amendment, supplement, replacement supplement or modification to be made to, or any waiver of any provision provision, right or remedy under, the Debt Commitment Letter Financing Agreements without the Company’s prior written consent, which consent shall not be unreasonably withheld, if such amendment, supplement, replacement, modification or waiver would (Ai) reduces reduce (or would reasonably be expected to have the effect of reducing) the aggregate amount of the cash Financing, if the aggregate proceeds from would not be sufficient to fund the Debt Financing or Purposes, (Bii) imposes impose new or additional conditions to the initial funding conditions, (iii) otherwise amend, modify or otherwise expands expand any of the conditions conditions, to the receipt of the Debt Financing, in the case of this clause (iii), in a manner adverse to Parent or Merger Sub or the Company, or (iv) otherwise expandsexpand, amends amend or modifies modify any other provision of the Debt Commitment Letter Letters, in the case of this clause (iv), in a manner that would reasonably be expected to (x) delay or prevent or make less likely the funding in full of the Debt Financing (or satisfaction of the conditions precedent to the Debt Financing) on the Closing Date, Date or (y) adversely affect impact the ability of Parent or Merger Sub or the Company, as applicable, to enforce its rights against other parties to the Debt Commitment Letter or Financing Agreements, in each of clauses “(x)” and “(y)” in any material respect. Subject to compliance with the definitive agreements with respect thereto (providedother provisions of this Section 7.10(a), that Parent and Merger Sub may amend the Debt Commitment Letter Letters to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long who had not executed the Debt Commitment Letters as of the date of this Agreement, and in connection therewith amend economic and other arrangements with respect to the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities. In the event of such amendment of the Debt Commitment Letters as permitted by the immediately preceding sentence, the financing under such amended Debt Commitment Letters will be deemed to be the “Financing” as such action would not reasonably be expected to delay or prevent term is used in this Agreement. Without limiting the Closing). foregoing, Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, Merger Sub will use its their reasonable best efforts to (A1) to maintain in effect the Debt Commitment Letter Letters (provided that including any definitive agreements entered into in connection therewith), (2) satisfy on a timely basis all conditions in the Financing Agreements applicable to Parent and Merger Sub to obtaining the Financing, (3) provide to the Financing Sources, no later than May 31, 2014, or sooner to the extent reasonably practicable, the information and materials referred to in Section 5 of Exhibit B to the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided Letters of even date herewith (assuming timely compliance by Company with its obligations hereunder in this Section 6.13respect of delivery of Required Information), (B4) cause the Marketing Period to be concluded on or before the date of the last to occur of the satisfaction or waiver of the conditions to the obligations of Parties set forth in Section 8.01(a), 8.01(b), 8.01(d) and 8.01(e), (5) negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) Letters on the terms (taking into account “market flex” provisions) and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of)Letters, and other terms consistent with (but in a manner that will not impede no event containing conditions or contingencies to the ability of the parties to consummate the Merger, all conditions to receipt funding of the full amount of the Debt 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 not contemplated in) the Debt Commitment LetterLetters (such definitive agreements, together with the Debt Commitment Letters, the “Financing Agreements”), and promptly upon execution thereof provide complete executed copies of such definitive agreements to the Company, (6) comply in all material respects with each Financing Agreement, (7) enforce in all material respects their rights under the Financing Agreements, and (8) consummate the Debt Financing at or prior to the Closing. Parent shall give the Company prompt written notice (A) of any breach or default by any party to any Debt Commitment Letter or other Financing Agreements of which Parent or Merger Sub becomes aware, (B) if and when Parent or Merger Sub becomes aware that any portion of the Financing contemplated by any Debt Commitment Letter may not be available for the Financing Purposes, (C) of the receipt of any written notice or other written communication from any Person with respect to any (1) actual or potential breach, default, termination or repudiation by any party to any Debt Commitment Letter or other Financing Agreements or (2) material dispute or disagreement between or among any parties to any Debt Commitment Letter or other Financing Agreements (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing or Financing Agreements), and (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at of any expiration or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the termination of any Debt Commitment Letter have been oror other Financing Agreements. Without limiting the foregoing, upon funding of when reasonably requested by the Debt Financing will be, satisfiedCompany in writing, Parent and Merger Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its their efforts to arrange the Debt Financing, and, promptly following request by the Company, Financing and provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting copies of the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior definitive documents related to the Closing Date Financing (iprovided that any fee letters, engagement letters or other agreements that, in accordance with customary practice, are confidential by their terms may be redacted so as not to disclose such terms that are so confidential) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware and copies of any breach of the written notices or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, communications described in the case preceding sentence. If any portion of this clause (B)the Financing becomes, such breach or default would reasonably be expected to affect become, unavailable on the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing terms and conditions contemplated by the Debt Commitment Letter on applicable Financing Agreements (after taking into account flex terms), Parent will use its reasonable best efforts to arrange and obtain alternative financing from alternative sources in an amount sufficient to consummate the Transactions with terms and conditions not materially less favorable, taken as a whole, to Parent than the terms and conditions set forth therein. Parent shall promptly provide any information reasonably requested by in the Company relating to any circumstances referred to in this Section 6.13(c). Parent applicable Financing Agreements; provided that such alternative financing shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take be subject to any action material additional or enter into any transaction that would reasonably be expected modified conditions or other contingencies to materially impair, delay or prevent consummation of all or any portion of funding than those contained in the Debt Commitment Letters in effect on the date of this Agreement (such alternative financing, “Alternative Financing”) as promptly as practicable following the occurrence of such event. In such event, (1) the term “Financing” as used in this Agreement will be deemed to include any such alternative debt financing, (2) the term “Financing” will be deemed to include the Alternative Financing, (3) the term “Debt Commitment Letters” will be deemed to include any commitment letters with respect to any such alternative debt financing and (4) the term “Financing Agreements” will be deemed to include any definitive agreement with respect to the Alternative Financing. Parent and Merger Sub shall provide notice to the Company promptly upon receiving the Financing.
(db) Parent shall have the right to substitute the net cash proceeds received by Parent From and after the date hereof until the earliest of (x) the Closing, (y) the termination of this Agreement and prior (z) the date on which the Financing is obtained, the Company will use reasonable best efforts to the Closing from consummated offerings or other incurrences of debt (including notes) provide, and to cause its Subsidiaries to provide, to Parent at Parent’s cost and expense, and will use reasonable best efforts to cause its and their Representatives to provide, all cooperation reasonably requested by Parent for all or any portion of that is customary and necessary to permit Parent to arrange, obtain and syndicate the Debt Financing by reducing commitments under and cause the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result conditions in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required Agreements to be paid satisfied, including (i) assisting with the preparation of offering and syndication documents and materials, including information memoranda, lender presentations, rating agency materials and presentations, and similar documents and materials, in connection with the transactions contemplated by this AgreementFinancing, and providing reasonable and customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders and containing customary information (x) all such documents and materials, collectively, the proceeds “Offering Documents”); provided, that the provision of such debt offerings financial or other incurrences have been received information or data is addressed solely by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement preparing and furnishing to Parent and the Financing Sources, as promptly as practicable after it is requested, with all Required Information and other information and disclosures relating to the “Debt Commitment Letter” Company and as shall be deemed reasonably requested by Parent to include assist in preparation of the Debt Commitment Letter which is Offering Documents; provided, that, for the avoidance of doubt, the Company shall not superseded be required to prepare or furnish under this Section 7.10(b) or otherwise, (A) pro forma financial statements, pro forma financial information or pro forma adjustments, including those giving effect to the consummation of the Merger, (B) any description of all or any component of the Financing, including any such description to be included in any liquidity or capital resources disclosure and any projections, risk factors or other forward-looking statements relating to all or any component of the Financing, or (C) any other information or statements customarily prepared by the acquiror in like transactions, (iii) causing a New Debt Commitment Letter member of senior management of the Company to participate at reasonable times in a reasonable number of presentations, due diligence sessions, and sessions with ratings agencies in connection with the time Financing, (iv) requesting the Company’s independent auditors to cooperate with Parent’s reasonable best efforts to obtain the Financing, (v) assisting in question the preparation of, and each New Debt Commitment Letter executing and delivering, definitive financing documents, including guarantee and collateral documents, hedging agreements, solvency certifications and other certificates and documents as may reasonably be requested by Parent, (vi) facilitating the pledging of collateral for the Financing, including taking commercially reasonable actions necessary to permit the Financing Sources to evaluate the Acquired Companies’ assets and cash management systems for the purpose of establishing collateral arrangements and establishing, as of the Effective Time, bank and other accounts and blocked account agreements and lockbox arrangements in connection with the Financing, (vii) using reasonable best efforts to obtain from the Company’s existing lenders customary payoff letters, lien releases, and instruments of termination or discharge, and (viii) cooperating with Parent to satisfy the conditions precedent to the Financing to the extent then within the control of the Acquired Companies; provided, however, in effecteach case, and that (iiiA) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment no obligation of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds Subsidiaries under any certificate, document, agreement or instrument (other than the authorization and representation letters referred to consummate above) will be effective until the Merger Effective Time, (B) none of the Company or any of its Subsidiaries shall be required to pay any commitment or other fee or amount or incur any liability in connection with the Financing prior to the Effective Time, (C) the pre-Closing Board of Directors of the Company and the transactions contemplated directors, managers and general partners of the Company’s Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Financing is obtained except such resolutions of the directors, managers and general partners of the Company’s Subsidiaries as would not become effective until the Effective Time, (D) none of the Company or any of its Subsidiaries shall be required to execute any definitive financing documents, including any credit or other agreements, pledge or security documents, or other certificates, legal opinions or documents in connection with the Financing that become effective prior to the Effective Time, (E) except as expressly provided above, neither the Company nor any of its Subsidiaries shall be required to take any corporate actions prior to the Effective Time to permit the consummation of the Financing and (F) Parent and Merger Sub shall jointly and severally indemnify, defend and hold harmless the Company and its Subsidiaries, and their respective pre-Closing directors, officers and representatives, from and against any and all damages incurred, directly or indirectly, in connection with the Financing or any information provided in connection therewith. In connection with the foregoing, the Company will file with the SEC all quarterly reports on Form 10-Q for the quarterly fiscal periods ending on and after March 31, 2014 not later than 45 days following the end of each fiscal quarter of the Company. The Company hereby consents to the use of its Subsidiaries’ logos in connection with the Financing; provided, however, that such logos are used solely in a manner that does not harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries. The Company will, upon request of Parent, use its reasonable best efforts to periodically update any Required Information to be included in any Offering Document to be used in connection with such Financing so that Parent may ensure that any such Required Information does not contain any untrue statement of material fact or omit to state any material fact necessary in order to make the statements contained therein not misleading. Parent shall promptly reimburse the Company and its Subsidiaries for all out-of-pocket costs (including reasonable attorneys’ fees) incurred by this Agreementthe Company or its Subsidiaries in connection with such Financing cooperation.
Appears in 1 contract
Sources: Merger Agreement (Cbeyond, Inc.)
Financing. (a) Subject to the terms Parent and conditions of this Agreement, Parent Merger Sub shall use its their respective commercially 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 or proper to arrange and obtain the Debt Financing consistent with the terms specified and described in the Commitment Letter delivered to the Company by Parent and otherwise on terms reasonably acceptable to Parent, including using commercially reasonable efforts to (i) maintain in effect the Commitment Letter, (ii) satisfy on a timely basis all conditions applicable to Parent to obtaining the Financing set forth therein, (iii) enter into definitive agreements with respect thereto on or before the Closing Date on the terms and conditions described in contemplated by the Debt Commitment Letter pursuant or on such other terms as Parent reasonably determines, in good faith, are substantially comparable or more favorable to Parent and (iv) consummate the terms thereof (including any “market flex” provisions) including using its reasonable best efforts Financing at or prior to seek to enforce its rights under Closing. Between the Debt Commitment Letter in date of this Agreement and the event of a breach thereof by the financing provider(s) thereunder. Effective Time, Parent shall not, and shall not permit any of its Subsidiaries to, without the Company’s prior written consentconsent of the Company (which consent shall not be unreasonably withheld, permit delayed or conditioned), take any amendmentaction or intentionally omit to take any action that would, supplement, replacement or modification to would be made reasonably likely to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands result in 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 in full of the Debt Financing (or satisfaction alternative financing pursuant to this Section 5.11) not being satisfied. In the event any portion of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) becomes unavailable on the terms and conditions that are not materially less favorable to Parent than those contained contemplated in the Debt Commitment Letter, (C) Parent shall use its commercially reasonable efforts to satisfy on a timely basis (or arrange to obtain the waiver of), and alternative financing from alternative sources in a manner that will not impede the ability of the parties an amount sufficient to consummate the Mergertransactions contemplated by this Agreement on terms Parent determines reasonably acceptable to Parent as promptly as practicable following the occurrence of such event. At the Company’s request, all conditions to receipt of the full amount of the Debt 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, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company reasonably informed on a current basis and in reasonable detail of with respect to all material activity concerning the status of its efforts to arrange the Debt Financing, and, promptly following request by Financing and shall give the Company, provide Company prompt notice of any material adverse change with respect to the Company copies of all executed Debt Financing Agreements.
(c) Financing. Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Daysbusiness days, if at any time prior to the Closing Date (i) the Debt any Commitment Letter is shall expire or be terminated for any reason, reason or (ii) Parent becomes aware of any breach or default (A) by any Financing Source financing source that is a party to the Debt any Commitment Letter notifies Parent that such source no longer intends to either provide or any Debt Financing Agreement or (B) any other party underwrite financing to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter Parent on the material terms set forth therein. To the extent any solvency opinion or officer’s certificate regarding solvency is delivered to either of the Co-Agents (as defined in the Commitment Letter) under the Commitment Letter or other lenders pursuant to an alternate debt financing arrangement, then Parent shall promptly provide any information reasonably requested by a copy of such solvency opinion or officer’s certificate to the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without and the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt FinancingCompany Board.
(db) Parent shall have the right The Company agrees to substitute the net cash proceeds received by Parent after the date hereof provide, and prior will cause its Subsidiaries and its and their respective directors, officers, employees and advisors to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for provide, all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid cooperation reasonably necessary in connection with the arrangement of Financing to be consummated prior to or contemporaneously with the Effective Time in respect of the transactions contemplated by this Agreement, (x) including participation in meetings and due diligence sessions, the proceeds provision of such debt offerings Company-specific information necessary for the preparation of offering memoranda, private placement memoranda, prospectuses and similar documents, and the execution and delivery of any commitment letters, underwriting or placement agreements, pledge and security documents, other definitive financing documents, or other incurrences have been received requested certificates or documents, including a certificate of the chief financial officer of the Company with respect to solvency matters, audited and unaudited financial statements, comfort letters of accountants and legal opinions as may be reasonably requested by Parent in cashor Merger Sub, (y) Parent promptly notifies and taking such other actions as are reasonably required to be taken by the Company of such substitution and reduction and (z) truein the Commitment Letter; provided, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of that the Company and its Subsidiaries pursuant shall not be obligated to Section 6.14 shall no longer be in effectincur any indebtedness under any such agreement or instruments until the Effective Time. FurtherParent shall, Parent shall have promptly upon request by the right to substitute commitments in respect of other financings Company, reimburse the Company for all reasonable out-of-pocket costs incurred by the Company or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid its Subsidiaries in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectcooperation.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Remedytemp Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange arrange, obtain and obtain consummate the Debt proceeds of the Financing as soon as practicable, and in any event no later than the Closing, on the terms and conditions described in the Debt Equity Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Letters, including using (and causing its Subsidiaries to use) their respective reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(sto: (i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands 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 comply with and maintain in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter 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 delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete force and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Equity Commitment Letter Letters in accordance with the terms and conditions thereof; (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (Bii) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) thereto on the terms and subject only to the conditions that are not materially less favorable to Parent than those contained in the Debt Equity Commitment LetterLetters and comply with and maintain in full force and effect the Equity Commitment Letters in accordance with the terms and subject only to the conditions thereof, so that the Equity Commitment Letters are in full force and effect as promptly as practicable after the Agreement Date, but in no event later than the Closing; and (Ciii) to satisfy on a timely basis (or obtain the waiver of), draw down upon and 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 Debt 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, to consummate the Debt Financing at or prior to the Closing.
(b) Neither Parent nor its Affiliates shall agree to any amendment, supplement or other modification to, obtain any replacement of, or grant any waivers of, any condition or other provision of any Equity Commitment Letter in a manner that is reasonably likely to materially delay or prevent the Closing without the prior written consent of the Company. Parent shall not permit, release or consent to the withdrawal, termination, repudiation or rescission of the Equity Commitment Letters or any definitive agreement with respect to the Financing and shall not permit, release or consent to the termination of the obligations of any party to the Equity Commitment Letters, in each case, without the prior written consent of the Company.
(Dc) In no event shall Parent or Merger Sub or any of their Affiliates (which for purposes of this Section 6.11(c) shall be deemed to comply include the parties to the Equity Commitment Letters and their Affiliates) prohibit or seek to prohibit any bank or investment bank or other potential provider of debt financing, from providing or seeking to provide financing or financial advisory services to any Person in connection with a transaction relating to the Company or its obligations under Subsidiaries or in connection with the Debt Commitment Letter, Merger or the other Transactions.
(d) Each of Parent and (E) ▇▇▇▇▇▇ Sub acknowledges and agrees that neither the obtaining of the Financing nor the obtaining of any alternative financing is a condition to the Merger or the Closing and reaffirms its obligation to consummate the Debt Merger and the other Transactions irrespective and independently of the availability of the Financing at or prior any alternative financing, subject to the Effective Time. In the event that all applicable conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding Section 7.01 and Section 7.02.
(e) Parent and Merger Sub acknowledge and agree that none of the Debt Financing will be, satisfied, Company or its Subsidiaries or their respective Affiliates or its and their Affiliates’ respective Representatives shall incur any liability to any Person under any financing that Parent and Merger Sub may raise in connection with the Transactions or any cooperation provided pursuant to this Section 6.11.
(f) Any breach of the Equity Commitment Letters by Parent shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financingbe deemed a breach by Parent of this Section 6.11. Parent shall keep (i) furnish the Company informed with complete, correct and executed copies of each amendment, waiver or other modification of the Equity Commitment Letters and any alternative financing agreement promptly upon their execution, (ii) give the Company prompt (but, in any event, within two (2) Business Days) written notice of any breach (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) or threatened breach by any party to the Equity Commitment Letters or any alternative financing agreement of which Parent or Merger Sub becomes aware and any actual or threatened withdrawal, repudiation or termination thereof of which Parent or Merger Sub becomes aware and, in each case, any written notice or other communication with respect to any of the foregoing, (iii) give the Company prompt (but, in any event, within two (2) Business Days) written notice of each material dispute or disagreement between or among the parties to the Equity Commitment Letters, (iv) notify the Company if for any reason Parent no longer believes in good faith that it will be able to obtain all or any portion of the Financing contemplated by the Equity Commitment Letters, on a current basis the terms described therein and (v) upon reasonable request of the Company, promptly provide an update in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements(or any alternative financing).
(cg) Without limiting the foregoing, Parent agrees to 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement ifThe parties hereto acknowledge that, in the case of this clause (B)event that a Debt Document Waiver is withdrawn, such breach modified or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Furtherterminated, Parent shall have may attempt to arrange third party debt financing for the right to substitute commitments in respect purpose of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with funding the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by ”) and, if Parent so chooses to seek the Debt Commitment Letter Financing, the Company shall use reasonable best efforts to provide, and shall use reasonable best efforts to cause its Subsidiaries and their respective Representatives to provide, such customary cooperation as modified pursuant to clause (ii) below, (ii) any reference is reasonably requested by Parent in this Agreement to the “Debt Commitment Letter” shall be deemed to include connection with the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectFinancing.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its commercially reasonable best efforts to 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 on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Financing Letters and shall not, without the Company’s prior written consent, not permit any amendment, supplementmodification or replacement of the Financing Letters, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver replacement (Ax) reduces the aggregate amount of the cash proceeds from the Debt Financing or (By) imposes new or additional conditions to the initial funding or otherwise expands 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 conditions to the Financing in a manner that would reasonably be expected to (xi) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, Date or (yii) adversely affect impact the ability of Parent or Merger Sub, as applicable, to enforce its rights against other parties to the Debt Commitment Letter Financing Letters or the definitive agreements documents with respect thereto in each of clauses (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 delay or prevent the Closing)i) and (ii) in any material respect. Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
replacement (b) Parent shallbut not any related fee letter or amendment, and modification or replacement thereto). For purposes of this Section 5.5, references to “Financing” shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) include the financing contemplated by the Financing Letters as permitted to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replacedmodified or replaced by this Section 5.5(a) and references to “Debt Commitment Letter” shall include such documents as permitted to be amended, modified or waived as provided in replaced by this Section 6.135.5(a), . Each of Parent and Merger Sub shall use its commercially reasonable efforts (Bi) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (Cii) to satisfy on a timely basis (or obtain the waiver of), and 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 funding in the Debt Financing at the Closing set forth therein Commitment Letter applicable to it that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to and consummate the Debt Financing at or prior to the Closing, and (Diii) to comply with enforce its obligations rights under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company reasonably informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, Financing and provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify material definitive documents for 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 is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or Financing. If any portion of the Debt Financing contemplated by the Debt Commitment Letter becomes unavailable on the terms set forth therein. Parent shall promptly provide any information reasonably requested and conditions contemplated by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (wA) Parent and Merger Sub shall promptly notify the aggregate Company and (B) Parent and Merger Sub shall use their commercially reasonable efforts to arrange and obtain alternative financing from alternative sources in an amount sufficient to consummate the Transactions with terms and conditions no less favorable, taken as a whole, to Parent and Merger Sub (or their Affiliates) than the terms and conditions set forth in the Financing Letters as promptly as practicable following the occurrence of such event. Parent and Merger Sub acknowledge and agree that the obtaining of the Debt Financing committed under the Debt Commitment Letter following such reductionFinancing, together with other cash and cash equivalents available to Parentor any alternative financing, is sufficient not a condition to pay all amounts Closing. Notwithstanding anything contained in this Section 5.5 or in any other provision of this Agreement, in no event shall Parent or Merger Sub be required to amend or waive any of the terms or conditions hereof. Notwithstanding anything contained in this Section 5.5 or in any other provision of this Agreement, Parent and Merger Sub shall give the Company prompt written notice: (i) of any material breach or default by any party to any Financing Letters or definitive document related to the Financing of any provisions of the Financing Letters; (ii) of the receipt of any written notice or other written communication from any financing source with respect to any: (A) material breach, default, termination or repudiation by any party to any Financing Letters of any provisions of the Financing Letters or (B) material dispute or disagreement between or among any parties to any Financing Letters; and (iii) if for any reason Parent or Merger Sub believes in good faith that it is reasonably likely that it will not be paid able to obtain all or any material portion of the Financing in the amounts or from the sources contemplated by the Financing Letters and that it is not reasonably likely that it will be able to obtain acceptable alternative financing; provided, that Parent and Merger Sub shall be under no obligation to disclose any information that is subject to an attorney-client or similar privilege or if such disclosure would violate any Law.
(b) The Company shall provide to Parent and Merger Sub, and shall cause its Subsidiaries to provide, commercially reasonable efforts to cause its Representatives, including legal and accounting, to provide, all cooperation reasonably requested by Parent or Merger Sub and all cooperation that is customary, necessary or advisable in connection with arranging and obtaining of the Financing or any permitted replacement, amended, modified or alternative financing (collectively with the Financing, the “Available Financing)” and the other Transactions (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), including (i) assisting with the preparation of offering and syndication documents and materials, including prospectuses, private placement memoranda, information memoranda and packages, lender and investor presentations, rating agency presentations, and similar documents and materials, in connection with the transactions contemplated by this AgreementAvailable Financing (all such documents and materials, collectively, the “Offering Documents” ), (xii) preparing and furnishing Parent and Merger Sub and their financing sources as promptly as practicable with all financial and other information and disclosures relating to the proceeds of such debt offerings or other incurrences have been received Company and its Subsidiaries (including their businesses, operations, financial projections and prospects) as may be reasonably requested by Parent or Merger Sub to assist in cashpreparation of the Offering Documents (including execution of customary authorization and management representation letters and certificates), (yiii) Parent promptly notifies the Company participating in a reasonable number of such substitution meetings, presentations, road shows, due diligence sessions, drafting sessions and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero sessions with rating agencies in connection with the preceding sentenceAvailable Financing, the obligations including direct contact between senior management and Representatives of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative and Parent’s and Merger Sub’s financing sources so long as and potential lenders and investors in the aggregate amount of the Debt Available Financing, together with other cash and cash equivalents available to Parentobtaining any corporate, is sufficient to pay all amounts required to be paid in connection with the transactions credit and ratings from rating agencies contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee iv) obtaining accountant’s comfort letters and associated engagement letters consents from the Company’s independent auditors, (solely in v) assisting Parent with the case preparation of definitive financing documents, including guarantee and collateral documents, hedging agreements and other certificates and documents as may be requested by Parent or Merger Sub, (vi) facilitating the pledging of collateral for the Available Financing, including taking commercially reasonable actions necessary to permit the financing sources of the fee letterAvailable Financing to evaluate the Company’s and its Subsidiaries’ real property and current assets, with only cash management and accounting systems, policies and procedures for the fee amountspurpose of establishing collateral arrangements and establishing, pricingas of the Effective Time, “market flex” provisions bank and other economic terms that do not adversely affect accounts and blocked account agreements and lockbox arrangements in connection with the enforceabilityAvailable Financing, availability (vii) using commercially reasonable efforts to obtain such consents, approvals, authorizations and instruments which may be reasonably requested by Parent or conditionality ofMerger Sub in connection with the Available Financing and collateral arrangements, including customary payoff letters, lien releases and instruments of termination or discharge, and (viii) facilitating the aggregate amount consummation of proceeds available underthe Financing, including cooperating with Parent and Merger Sub to satisfy the Debt Financing contained therein redacted), will be promptly provided conditions precedent to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter Financing to the extent then in effectwithin the control of the Company and its Subsidiaries, and taking all actions reasonably requested by Parent or Merger Sub to permit the consummation of the Financing and to permit the proceeds thereof to be made available immediately at the Effective Time; provided, however, that, no obligation of the Company or any of its Subsidiaries under any certificate, document or instrument (iiiother than the authorization and representation letters and certificates referred to above) any reference in this Agreement to “fee letter” shall be deemed effective until the Effective Time and, none of the Company or any of its Subsidiaries shall be required to include pay any commitment or other similar fee letter relating or incur any other liability in connection with the Available Financing prior to the Debt Commitment Letter Effective Time. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable 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 5.5(b) (it is understood and agreed that is nothing herein shall require Parent to pay for any attorneys’ fees incurred to review documents that would not superseded by their terms become effective at or after the Effective Time) and shall 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 New Debt Commitment Letter at of them in connection with the time arrangement of the Financing and any information used in question and each New Debt Commitment Letter connection therewith, except with respect to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under any information prepared or provided by the Company Credit Agreement in full or any of its Subsidiaries. All material non-public information provided by the Company or any of its Representatives pursuant to this Section 5.5(b) shall be kept confidential in accordance with the Company Credit Confidentiality Agreement, except that Parent and Merger Sub shall be permitted to disclose such information to potential sources of capital, rating agencies and prospective lenders and investors during syndication of the Available Financing subject to compliance the potential sources of capital, ratings agencies and prospective lenders and investors entering into customary confidentiality undertakings with Section 6.14(a)(iiirespect to such information (including through a notice and undertaking in a form customarily used in confidential information memoranda for senior credit facilities).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Dynamex Inc)