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 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. (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 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 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 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. (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 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) 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 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 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 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 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 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 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 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 [Reserved].
(b) Neither Parent nor Merger Sub will consent 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, restatement, replacement, supplement, replacement termination, assignment or modification to be made to, or any waiver of any provision (including any condition) or remedy under, the Debt any Commitment Letter or Financing Agreement (or any commitment in respect thereof) without the prior written consent of the Company (which consent will not be unreasonably withheld, delayed or conditioned), if such amendment, restatement, replacement, supplement, replacementtermination, assignment, modification or waiver would (Ai) reduces reduce the aggregate principal amount of the cash proceeds from Financing to an amount less than that is required to consummate the Debt transactions under this Agreement (after giving effect to Staples Available Financing Sources) (including by changing the amount of fees to be paid or original issue discount of the Financing or similar fees, in each case if such changes would reduce the aggregate principal amount of the Financing) unless Alternative Financing or Staples Available Financing Sources are then made available in the amount of such reduction, (Bii) imposes impose new or additional conditions to the initial funding or any contingencies, or otherwise expands amend, restate, replace, supplement, terminate, assign, modify or expand any of the conditions conditions, to the receipt of the Debt FinancingFinancing on the Closing Date or (iii) individually or in the aggregate with all other amendments, restatements, replacements, supplements, terminations, assignments, modifications or otherwise expandswaivers, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (xA) materially delay or prevent the Offer Closing or the Closing, (B) make the funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on less likely to occur at or prior to the Closing DateOffer Closing, or (yC) adversely affect impact the ability of each of Parent or Merger Sub to enforce its rights against the other parties to the Debt Commitment Letter Letters or Financing Agreements or delay, prevent or adversely impact the definitive agreements with respect thereto (ability of each of Parent or Merger Sub to consummate the Contemplated Transactions; provided, however, that Parent and Merger Sub may (i) amend the Debt Commitment Letter Letters to add or replace lenders, lead arrangers, bookrunners, agents, syndication agents, documentation agents or similar entities who had not executed the Commitment Letters as of the date of this Agreement in accordance with the provisions of the Commitment Letters, (ii) amend or otherwise modify the Commitment Letters to implement any flex provisions applicable thereto or (iii) otherwise amend, modify or replace, or agree to any waivers in respect of, the Commitment Letters so long as such action would not reasonably be expected as, with respect to delay or prevent replacements, the Closing)replacement debt commitments otherwise satisfy the terms and conditions of an Alternative Financing set forth below. Parent shall promptly deliver to In the Company true, complete and correct copies event of any such amendment, restatement, replacement, supplement, assignment, modification or replacementwaiver of any Commitment Letter or Financing Agreement as permitted by the immediately preceding sentence, the financing under such amended, modified, restated, replaced, supplemented, assigned or waived Commitment Letter or Financing Agreement will be deemed to be “Financing” as such term is used in this Agreement.
(bc) Parent shallshall take, and shall cause its Affiliates to take, or cause to be taken, all actions and Representatives todo, use its reasonable best efforts (A) or cause to maintain in effect be done, all things necessary, proper or advisable to arrange and obtain the Debt Commitment Letter (provided that proceeds of 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 (including any market flex provisions) described in the Debt Commitment LetterLetters as promptly as practicable following the date hereof and by no later than the Offer Closing, including executing and delivering the Financing Agreements and all other documents and instruments as may be reasonably required thereunder and:
(Ci) using reasonable best efforts to satisfy maintain in effect and comply with the Commitment Letter and the Financing Agreements;
(ii) satisfying, or causing their Representatives to satisfy, on a timely basis (or obtain and no later than the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, Offer Closing) all conditions to receipt the Financing contemplated by the Commitment Letters and the Financing Agreements relating thereto (including by paying any commitment, engagement or placement or other fees or amounts that become due and payable to the extent required to be paid as a condition to the Financing);
(iii) accepting (and complying with) to the fullest extent all market flex provisions contemplated by the Commitment Letters and the Financing Agreements;
(iv) enforcing its rights (including through litigation) under the Commitment Letters and the Financing Agreements in the event of a breach (or threatened breach in writing) by the full amount of Financing Sources under the Debt Commitment Letters and the Financing Agreements relating in each case thereto; and
(v) causing the Financing Sources and any other Persons providing Financing to fund the Financing no later than at the time the Offer Closing set forth therein that are within its control or subject is required to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior occur pursuant to the Closing, terms and conditions of this Agreement.
(Dd) 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 Parent 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 Parent’s and Merger Sub’s efforts to arrange obtain the Debt FinancingFinancing and to satisfy the conditions thereof, and, promptly following request by including advising and updating the Company, in a reasonable level of detail, with respect to the status, proposed Closing Date and material terms of the Financing Agreements. Parent will promptly provide to the Company copies of all executed Debt Financing Agreements.
(c) Agreements and other documents related to the Financing including any amendment, restatement, replacement, supplement, termination, assignment, modification or waiver thereto. Without limiting the generality of the foregoing, 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 written notice of (i) any actual breach, default (or any event of which Parent or Merger Sub is aware that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any default or breach), termination, cancellation or repudiation by any party to any of the Debt Commitment Letter is terminated for any reasonor the Financing Agreements, (ii) Parent becomes aware the receipt of any breach written notice or default other written communication from any Financing Source with respect to any (A) actual or potential breach, default, termination, cancellation or repudiation by any Financing Source party to any of the Debt Commitment Letter Letters or any Debt Financing Agreement of any provisions of the Commitment Letters or any Financing Agreement or (B) material dispute or disagreement between or among any other party parties to any of the Commitment Letters or any Financing Agreement with respect to the Debt Commitment Letter conditionality or any Debt amount of the Financing Agreement if, in or the case obligation to fund the Financing or the amount of this clause the Financing to be funded at the Closing (B), such breach but excluding ordinary course negotiations) and (iii) the occurrence of an event or default would development that could reasonably be expected to affect materially and adversely impact the availability ability of the Debt Financing Parent or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses Merger Sub to provide, obtain all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on Letters or any Alternative Financing, in each case, after giving effect to Staples Available Financing Sources. As soon as reasonably practicable, but in any event within two Business Days of the terms set forth therein. date the Company delivers to Parent or Merger Sub a written request, Parent 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 immediately preceding sentence.
(e) If all or any portion of the Debt Financing becomes unavailable or could reasonably be expected to become unavailable on the terms and conditions and from the Financing Sources (giving effect to the flex provisions applicable thereto) and Staples Available Financing Sources are not then made available in a corresponding amount, (i) Parent will promptly notify the Company and (ii) Parent will use its reasonable best efforts to obtain alternative financing from the same or alternative sources in an amount sufficient to consummate the Contemplated Transactions (it being understood that the terms of Section 7.05(b) will apply to such alternative financing, and, subject to Section 7.05(f), Parent shall have no obligation to (A) pay fees materially in excess of those contained in the Commitment Letters (including the market flex provisions) or agree to “market flex” terms materially less favorable to Parent than the corresponding market flex terms contained in or contemplated by the Commitment Letters or (B) accept any terms or conditions that are materially less favorable, taken as a whole, to Parent, Merger Sub or the Company than the terms and conditions set forth in the applicable Commitments Letters or Financing Agreements immediately prior to giving effect to the terms of such alternative financing) (“Alternative Financing”) as promptly as practicable following the occurrence of such event. In such event, as applicable: (1) the term “Financing” as used in this Agreement will be deemed to include any such Alternative Financing, (2) the term “Commitment Letters” will be deemed to include any commitment letters and fee letters with respect to any such Alternative Financing and (3) the term “Financing Agreements” will be deemed to include any definitive agreement with respect to the Alternative Financing.
(df) Parent shall have and Merger Sub acknowledge and agree that their obligations hereunder are not subject to any conditions regarding Parent’s, Merger Sub’s or any other Person’s ability to obtain the right to substitute the net cash proceeds received by Parent after the date hereof and prior Financing or any Alternative Financing.
(g) Prior to the Closing from consummated offerings or other incurrences of debt (including notes) Date, the Company shall use reasonable best efforts to provide, and to cause its Subsidiaries to provide, to Parent and Merger Sub, in each case at Parent’s sole cost and expense, such reasonable cooperation as is customary and reasonably requested 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 Financing, including using its reasonable best efforts to (i) provide reasonable and customary assistance with the preparation of appropriate and customary materials for lender presentations, bank information memoranda and similar documents reasonably and customarily required to arrange the Financing, (xii) to the proceeds of such debt offerings extent reasonably requested in writing by Parent at least ten (10) Business Days prior to Closing, to furnish Parent with all reasonable documents or other incurrences information required by bank regulatory authorities with respect to the Financing under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S.A. Patriot Act of 2011, relating to the Company or any of its Subsidiaries, (iii) have been received the Company designate members of senior management of the Company to execute customary authorization letters with respect to Company information included in a customary confidential information memorandum for a syndicated bank financing and cause management of the Company to participate in a reasonable number of meetings or presentations, between senior management and the Financing Sources, (iv) to the extent timely requested by Parent in cashand required under the Commitment Letter, (y) to obtain documents reasonably requested by Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification its Financing Sources relating to the Debt Commitment Letter relating thereto will be promptly provided to repayment of the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations existing indebtedness of the Company and its Subsidiaries pursuant and the release of related liens and related guarantees, including customary payoff letters, (v) assist in the preparation of definitive financing documents, including guarantee and collateral documents and customary closing certificates as may be required by the Financing and (vi) use reasonable best efforts to (A) subject to Section 6.14 shall no longer be 7.08, permit the prospective lenders involved in effect. Furtherthe Financing to evaluate the Company and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements, (B) cooperate with Parent shall have the right to substitute commitments in respect of establish bank and 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 accounts and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid blocked account agreements and lock box arrangements in connection with the transactions contemplated by this Agreement foregoing and all conditions precedent (C) permit representatives of the prospective lenders to funding conduct commercial field examinations, inventory and intellectual property appraisals, Phase I environmental assessments and an appraisal of such financing arethe owned real property, and make audits and appraisals delivered for the purposes of any credit facility available to Parent for purposes of its Financing. Such requested cooperation shall not, in respect the Company’s reasonable judgment, unreasonably interfere with the ongoing business or operations of certainty of funding, equivalent to (or more favorable to the Company than) and any of its Subsidiaries. The Company and its counsel shall be given reasonable opportunity to review and comment upon any bank information memoranda, lender presentations or similar documents that include information about the conditions precedent set forth Company or any of its Subsidiaries prepared in connection with the Debt Commitment LetterFinancing, to supplement or replace the Debt Financing (“Alternative Debt Financing”). Trueand Parent shall include in such memoranda, 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 documents and other economic terms that do not adversely affect the enforceabilitymaterials, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to comments reasonably proposed by 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, neither the Company nor any of its Subsidiaries shall be required to (A) pay any commitment or other similar fee, (B) incur any liability of any kind (or cause their respective Representatives to incur any liability of any kind) prior to the Merger Effective Time, (C) enter into or approve (or commit to enter into or approve) any certificate, document, agreement, instrument or Financing Agreement, in each case which will be effective prior to the Merger Effective Time, (D) take any action that would (i) unreasonably interfere with the ongoing operations of the Company or any of its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached, (iii) cause any director, officer or employee of the Company or any of its Subsidiaries to incur any personal liability, (iv) conflict with the organizational documents of the Company or any of its Subsidiaries or any Applicable Law or (v) result in the contravention of, or could reasonably be expected to result in a violation or breach of, or a default under, any contract to which the Company or any of its Subsidiaries is a party, (E) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (F) (i) provide any audited or unaudited financial statements (including separate financial statements for any Subsidiary) other than the Company SEC Documents, (ii) prepare any pro forma financial information (including pro forma cost savings synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financial information), (iii) change any fiscal period or (iv) provide financial or other information regarding the Company or its Subsidiaries that is not in the possession of the Company or any of its Subsidiaries or (G) issue any offering or information document or provide any legal opinion or other opinion of counsel or any solvency certificate that would become effective prior to Closing (it being understood that any solvency certificate would not cover Staples and its Subsidiaries after giving effect to the transactions contemplated under this Agreement).
(h) The Company hereby consents to the reasonable use of all logos of the Company in connection with the Financing so long as such logos are used (i) solely in connection with a description of the Company, its business and products or the Merger and (ii) solely in a manner that is reasonable and customary for such purposes and that is not intended to or reasonably likely to harm or disparage or otherwise adversely affect the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries or any of their respective products, services, offerings or intellectual property rights, and Parent shall make any modifications to such use requested by the Company. Any bank information memoranda, lender presentations or other documents prepared by or on behalf of or used by Parent’s obligations hereunder are not subject to a condition regarding Parent’s , any of its Affiliates, or any Financing Source or any of its Affiliates’ obtaining funds , in Parent’s financing activities in connection with the Contemplated Transactions or any Financing or Alternative Financing that include any information provided by the Company, its Affiliates, or their respective Representatives, shall include a conspicuous disclaimer to consummate the Merger effect that none of the Company, its Affiliates, or their respective Representatives has any responsibility for the content of such document and the transactions contemplated by this Agreement.that th
Appears in 2 contracts
Sources: Merger Agreement (Essendant Inc), Merger Agreement (Staples 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, 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 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 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) 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 Each of Parent and Merger Sub shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy pursuant to, the Financing Letters if such amendment, modification or waiver would or would reasonably be expected to (i) reduce the aggregate amount of the Debt Financing unless the Equity Financing is increased by an equivalent amount; (ii) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Financing in a manner that would reasonably be expected to delay or prevent in any material respect the ability of Parent to consummate the Merger; or (iii) adversely impact the ability of Parent, Merger Sub or the Company, as applicable, to enforce its rights against the other parties to the Financing Letters. Notwithstanding the foregoing, assignments consummated pursuant to the terms of the Financing Letters are permitted.
(b) 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 and advisable or proper to arrange and obtain the Debt Financing on the terms and conditions (including the flex provisions applicable thereto) described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Financing Letters, including using its commercially 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 Financing Letters in accordance with the terms and subject to the conditions thereof; (provided that the Debt Commitment Letter may be amendedii) negotiate, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate execute and enter into deliver definitive agreements with respect to the Debt Commitment Letter (Financing contemplated by the “Debt Financing Agreements”) Letters on the terms and conditions that are not materially less favorable to Parent than those contained in (including the Debt Commitment Letter, flex provisions) contemplated by the Financing Letters; (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 funding that are within its control or subject applicable to its influence and, Parent and Merger Sub in the Financing Letters and/or definitive agreements for the Financings; (iv) upon satisfaction of the conditions set forth in the Debt Commitment LetterFinancing Letters and this Agreement, to including the expiration of the waiting period, consummate the Debt Financing at or prior to the Closing, ; and (Dv) to comply in all material respects with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior pursuant to the Effective Time. In the event Financing Letters; provided, however, that all conditions precedent expressly set forth in the Debt Commitment Letter have been orunder no circumstances shall Parent, upon funding Merger Sub or any other Parent Related Party be required to commence or sustain a Legal Proceeding against any 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 Sources in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings Transactions 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 effectCommitment.
(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 (Evans Hugh D), Merger Agreement (Anaren 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 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 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 Each of Purchaser 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 arrange, consummate and obtain the Debt proceeds of the Financing as promptly as reasonably practicable on the terms and conditions described in the Debt Equity Commitment Letter, including: (i) maintaining in effect the Equity Commitment Letter; (ii) satisfying on a timely basis all conditions applicable to Parent and Purchaser set forth in the Equity Commitment Letter pursuant that are within their control; (iii) consummating the Financing at or prior to the terms thereof Acceptance Time (including and in any “market flex” provisionsevent prior to the Outside Date), subject to the satisfaction, or waiver by Parent, of all conditions to the Offer and the Merger; and (iv) including using its reasonable best efforts to seek to enforce its fully enforcing each Sponsor’s obligations (and the rights of Parent and Purchaser) under the Debt Equity Commitment Letter.
(b) Neither Purchaser nor Parent shall agree to any amendments or modifications to, or grant any waivers of, any condition or other provision or remedy under the Equity Commitment Letter without the prior written consent of the Company (which may be granted or withheld in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consentsole discretion), permit any amendmentto the extent such amendments, supplement, replacement modifications 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 waivers would (Ai) reduces reduce the aggregate amount of the aggregate cash proceeds available from the Debt Financing Financing, or (Bii) imposes impose new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, precedent or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter conditions precedent or other terms therein in a manner adverse to Purchaser, Parent or the Company, including any expansion, waiver, amendment or modification that would be reasonably be expected likely to (xA) prevent or delay or prevent impair the funding in full ability of Purchaser and Parent to consummate the Offer, the Merger and the other transactions contemplated hereby, (B) adversely impact the ability of the Debt Company, Purchaser or Parent to enforce its rights or remedies against the other parties to the Equity Commitment Letter or (C) make the timely funding of the Financing (or satisfaction of the conditions precedent to obtaining the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent Financing any less likely 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)occur. 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 one (21) Business Days, if at any time prior to Day) notify the Closing Date Company of (i) any amendment, waiver or modification, or agreement to do any of the Debt foregoing, of any term of the Equity Commitment Letter is terminated for any reasonLetter, (ii) Parent becomes aware of any breach the expiration or default termination (Aor attempted or purported termination, whether or not valid) 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 Equity Commitment Letter, or (iii) a counterparty indicates in writing or orally that it will not any refusal by the Sponsor to provide, any stated intent by the Sponsor to refuse to provide, or it refuses any expression of concern or reservation by the Sponsor regarding its obligation and/or ability to provide, all or any portion of the Debt Financing full financing contemplated by the Debt Equity Commitment Letter on the terms set forth thereinLetter. Neither Purchaser nor 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 release or 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 termination 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 lenders and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have other Persons under 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 Equity 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 (Procera Networks, Inc.), Merger Agreement (Procera Networks, 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) (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 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 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) 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 To the extent that Parent does not have cash currently available that is sufficient to enable it to consummate the terms and conditions of this AgreementMerger, Parent shall use its reasonable best efforts to take, 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 procure and have available, as of the Debt Financing on Closing, funds sufficient to pay the terms and conditions described in Required Amount. In furtherance of the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using foregoing, Parent shall use its reasonable best efforts to (i) maintain in full force and effect the Commitment Letter, (ii) satisfy on a timely basis (or, if deemed advisable by Parent, seek to enforce its rights under the Debt Commitment Letter a waiver of) all conditions set forth in the event of a breach thereof by Commitment Letter, (iii) cause the financing provider(s) thereunder. Parent shall notFinancing Sources to fund, without subject to 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 satisfaction 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 set forth in the Commitment Letter, the Financing on or before the Closing Date, (iv) negotiate and enter into the definitive agreements with respect to the receipt of Financing (collectively, the “Debt Financing, or otherwise expands, amends or modifies any other provision of Documents”) (and maintain in effect and comply in all material respects with the Debt terms thereof) on terms and conditions contemplated by the Commitment Letter in a manner (or, if available, on other terms that (1) would not reasonably be expected 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 Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to consummate the Debt Commitment Letter or the definitive agreements with respect thereto transactions contemplated hereby and (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.
(b2) 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 the terms and conditions (including “flex” provisions) described in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and which agreements shall be 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 effect no event later than the Closing set forth therein that are within its control or subject (provided that, any Debt Documents relating to its influence and, upon satisfaction of any bridge facility shall not be required until reasonably necessary in connection with 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 beFinancing), satisfied, Parent and Sub shall use their reasonable best efforts to (v) enforce their its 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 Documents in the event of a breach by any Financing Source under the Commitment Letter or Debt Documents relating thereto (it being understood and agreed that under no circumstances shall keep the Company informed on a current basis this clause (v) be construed to require Parent, Merger Sub or any of their respective affiliates to initiate or maintain any Action against any Financing Source) and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide (vi) furnish to the Company copies of all executed material Debt Financing Agreements.
Documents (c) Without limiting and, upon the foregoingreasonable written request of the Company, drafts thereof to the extent reasonably practicable). Prior to the Closing, Parent agrees to notify shall not agree to, or permit, any amendment, replacement, modification or supplement of, or waiver under, 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 it being understood that the exercise of any breach “flex” provisions shall not be deemed to be an amendment, replacement, modification, supplement or default (Awaiver) 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 in each case, which would: (A) reduce the net cash proceeds of the Financing provided for in the Commitment Letter (including by changing the amount of fees or original issue discount contemplated by the Commitment Letter) to an amount such that Parent will not have available, as of the Closing, funds sufficient to pay the Required Amount; (B) adversely expand the conditions to the funding of the Financing beyond those expressly set forth in the Commitment Letter, adversely amend or modify any action of such conditions (including by making any such conditions less likely to be satisfied) or enter impose any new or additional condition to the receipt or funding of the Financing at the Closing, in each case, in a manner that would or would be reasonably likely to make it less likely that the Financing would be funded or would otherwise prevent, materially delay or impair the transactions contemplated by this Agreement or otherwise adversely affect the ability of Parent to consummate the transactions contemplated herein; or (C) adversely impact in any material respect the ability of Parent or Merger Sub to enforce its rights against any of the Financing Sources; provided that Parent and Merger Sub may amend, supplement or modify the Commitment Letter with respect to “flex” rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement. Parent shall deliver to the Company true, correct and complete copies of any amendment, modification, supplement, consent or waiver to or under the Commitment Letter as promptly as practicable after execution thereof. Without limiting the foregoing provisions of this Section 6.14, if any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter (after taking into account “flex” provisions), Parent shall use reasonable best efforts to arrange to obtain alternative financing, including from alternative sources, on terms and conditions (including fees and the “flex” provisions) not less favorable, taken as a whole, than those set forth in the Commitment Letter (in the reasonable judgment of Parent), in an amount such that Parent will have available, as of the Closing, funds sufficient to pay the Required Amount (“Alternative Financing”) and, for all purposes of this Agreement, all references to the Financing (including the Financing Sources) shall be deemed to include such Alternative Financing (and the financial institutions and other entities with respect to such Alternative Financing) and all references to the Commitment Letter shall include the applicable commitment documents for the Alternative Financing. Parent shall provide a true, correct and complete copy of the commitment letter and related fee letter with respect to any transaction that such Alternative Financing to the Company (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted in a customary manner for transactions of this nature, none of which redacted provisions would reasonably be expected to materially impairadversely affect the conditionality, delay availability, enforceability, termination 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 Financing) as promptly as practicable after execution thereof. Notwithstanding anything to the Debt Commitment Letter following such reductioncontrary in this Agreement, together compliance by Parent with other cash and cash equivalents available this Section 6.14(a) shall not relieve Parent or Merger Sub of their obligation 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. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Section 6.14 shall require, and in no event shall the reasonable best efforts of Parent be deemed or construed to require, Parent to pay any fees to sources of debt in excess of those contemplated by the Commitment Letter. Parent shall, upon the reasonable written request of the Company, keep the Company informed on a reasonably current basis in reasonable detail of any material developments in its efforts to arrange the Financing.
(xb) Prior to the proceeds of such debt offerings or other incurrences have been received Closing, the Company shall, and shall cause its Subsidiaries to, use its and their reasonable best efforts to provide to Parent, at Parent’s sole cost and expense, all cooperation as is reasonably requested by Parent in cashconnection with arranging, underwriting, obtaining, syndicating and consummating the Financing, including: (i) as promptly as reasonably practicable, furnishing Parent and the Financing Parties with (A) such financial statements, financial data, audit reports and other financial information regarding the Company and its Subsidiaries of the type required by SEC Regulation S-X and SEC Regulation S-K under the Securities Act for registered offerings of debt securities on a Form S-3 of the type contemplated by the Commitment Letter, such financial statements to include (1) audited consolidated balance sheets and related statements of operations, comprehensive income (loss), equity and cash flows and related notes thereto of the Company for the three (3) fiscal years most recently ended at least sixty (60) days prior to the Closing Date (it being acknowledged that Parent has received such financial statements for the fiscal years of the Company ended December 31, 2018, December 31, 2017 and December 31, 2016) and (2) unaudited consolidated balance sheets and related statements of operations, comprehensive income (loss), equity and cash flows and related notes thereto of the Company for each subsequent fiscal quarter ended at least forty (40) days prior to the Closing Date (other than the fourth fiscal quarter of any fiscal year) (it being acknowledged that Parent has received such financial statements for the fiscal quarters of the Company ended March 31, 2018, June 30, 2018 and September 30, 2018) (other than customary exceptions in the case of a Rule 144A offering of high-yield debt securities, including, without limitation, the requirements of Sections 3-10 and 3-16 of Regulation S-X, Item 402 of Regulation S-K and information regarding executive compensation), (yB) Parent promptly notifies information regarding the Company of such substitution and reduction its Subsidiaries customarily included in information memoranda and other syndication materials for bank credit facilities, and (zC) true, correct and complete copies of each material amendment or modification all other historical financial information regarding the Company reasonably required by Parent to permit Parent to prepare customary pro forma financial statements to the Debt extent required by SEC rules and regulations or necessary or reasonably required by Parent or the Financing Sources to be included in any marketing materials or offering documents or of the type required by the Commitment Letter relating thereto will (collectively, the “Required Information”) required to consummate the Financing; provided that, without limiting the foregoing, the Company shall not be promptly provided obligated to prepare any pro forma financial information or projections (for which, for the avoidance of doubt, Parent shall be solely responsible), (ii) making appropriate members of senior management of the Company available at reasonable times and locations and upon reasonable prior notice, to participate in a reasonable number of meetings (including one-on-one meetings or conference calls with Financing Parties and potential Financing Parties), drafting sessions, presentations, road shows, rating agency presentations and due diligence sessions and other syndication activities, (iii) assisting Parent and its Financing Parties in the preparation of customary and appropriate (A) offering documents, offering memoranda, offering circulars, private placement memoranda, registration statements, prospectuses, syndication documents and other syndication materials, including information memoranda, lender and investor presentations, bank books and other marketing documents, and similar documents reasonably required for the Financing and (B) materials for rating agency presentations, (iv) cooperating with the marketing efforts of Parent and the Financing Parties, including, to the Company. If commitments under extent applicable, obtaining customary representation and authorization letters and arranging for customary auditor consents for use of the Debt Commitment Letter have been reduced to zero Required Information and other financial data in the marketing and offering documentation, including any registration statement filed with the SEC in connection with the preceding sentenceFinancing, (v) assisting in obtaining or updating corporate and facility credit ratings, (vi) using reasonable best efforts to cause the obligations Company’s independent registered accounting firm and internal and/or external counsel of the Company to provide assistance to Parent, including in connection with comfort letters and opinions of counsel to be delivered in connection with the Financing, including by (A) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary comfort letters (including “negative assurance” comfort and change period comfort) in connection with any capital markets transaction comprising a part of the Financing (including any offering or private placement of debt securities pursuant to Rule 144A) to the applicable Financing Parties and to participate in a reasonable number of due diligence sessions and (B) providing customary back-up certificates, (vii) reasonably cooperating with internal and external counsel of Parent or any Financing Party in connection with providing back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver in connection with the Financing, (viii) providing, as promptly as practicable, and in any event at least five (5) business days prior to the Closing, to the extent requested in writing at least ten (10) business days prior to the Closing, all documentation and other information regarding the Company and its Subsidiaries that any Financing Party reasonably determines is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act of 2001, and, to the extent required by any Financing Party, a beneficial ownership certificate (substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association) in respect of any of the Company or any of its Subsidiaries that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation (31 C.F.R. § 1010.230), (ix) assisting in the negotiation and preparation of, and executing and delivering, any credit agreement, indenture, note, purchase agreement, underwriting agreement, pledge and security documents, guarantees, hedging agreement, customary closing certificates and any other certificates, exhibits, schedules, letters and documents as may be reasonably requested by Parent, in each case contemplated in connection with the Financing, (x) facilitating Parent to benefit from the existing lending relationship of the Company and its Subsidiaries, (xi) informing Parent, as promptly as practicable, if the chief executive officer, chief financial officer, treasurer or controller of the Company or any member of the Company Board shall have actual knowledge of any facts as a result of which a restatement of any financial statements to comply with GAAP is probable or under active consideration and (xii) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent to permit the consummation of the Financing and to permit the proceeds thereof to be made available on the Closing Date. For the avoidance of doubt, to most effectively access the financing markets, Parent may require the cooperation of the Company and its Subsidiaries pursuant under this Section 6.14 at any time, and from time to time and on multiple occasions, between the date hereof and the Closing Date.
(c) All documentation prepared by the Company, its Subsidiaries and/or any of their respective Representatives in connection with this Section 6.14 shall no longer be subject to the prior review, comment and approval of Parent.
(d) The actions contemplated in effect. Furtherthis Section 6.14 with respect to the Financing shall not (i) require such cooperation from the Company to the extent it would require the Company, Parent shall have the right to substitute commitments in respect any of other financings for all its Subsidiaries, or any portion of its or their respective Representatives, to incur any monetary liability, pay any fees, reimburse any expenses, or provide any indemnity, in each case, prior to the Debt Financing from Closing that is not contingent on the same and/or alternative financing sources so long as Closing or for which Parent is not obligated to reimburse or indemnify the aggregate amount Company or its Subsidiaries under this Agreement, or take any actions that would cause the Company or any of the Debt Financing, together with other cash and cash equivalents available its Subsidiaries to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by breach this Agreement and all conditions precedent or become unable to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable satisfy a condition to the Company thanClosing, (ii) involve any binding commitment or agreement by the conditions precedent set forth in the Debt Commitment LetterCompany, to supplement any of its Subsidiaries, or replace the Debt Financing any of its or their respective Representatives (“Alternative Debt Financing”). True, correct other than customary authorization 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 representation letters and associated engagement letters (solely other than other actions by officers or directors continuing employment with Parent following the Closing that, in the case of such other actions, are contingent upon the fee letter, with only Closing and would not be effective prior to the fee amounts, pricing, “market flex” provisions Closing) which commitment or agreement is not conditioned on the Closing and other economic terms that do does 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 terminate without liability to the Company. In the event , any New Debt Commitment Letter is obtainedof its Subsidiaries, (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 or their respective Representatives upon the Merger and the transactions contemplated by termination of this Agreement., (iii) require such cooperation to the extent it would unreasonably interfere with the operations or business of the Company, (iv) require the Company, an
Appears in 2 contracts
Sources: Merger Agreement (Worldpay, Inc.), Merger Agreement (Fidelity National Information Services, Inc.)
Financing. (a) 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, 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 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) 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 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 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 limitations contained in Section 9.4, but notwithstanding anything else in this Agreement to the contrary, the Datatel Entities acknowledge and agree that Parent’s and Merger Sub’s obligations to consummate the Merger, and Purchaser Company’s obligation to consummate the transactions contemplated by the Asset Purchase Agreement, are not conditioned upon any Datatel Entity’s obtaining any financing. For the avoidance of doubt, the Datatel Entities acknowledge and agree that the existence of any conditions contained in the Financing Commitments or any commitment letter for any alternative financing or any agreement relating thereto shall not constitute, nor be construed to constitute, a condition to the consummation of the Merger hereunder (except to the extent it is separately required by an express provision in this Agreement).
(b) None of the Datatel Entities shall permit any amendment or modification to be made to, Parent or any waiver of any provision or remedy under, or replace, the Financing Commitments if such amendment, modification, waiver or replacement (x) reduces the aggregate amount of the Financing or (y) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Financing in a manner that would reasonably be expected to (I) delay or prevent the Asset Closing Date or the Closing Date, (II) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur or (III) adversely impact the ability of Sophia Holding I or Datatel, as applicable, to enforce its rights against other parties to the Financing Commitments or the definitive agreements with respect thereto, and shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to Financing Commitments (provided that Parent may (x) modify the terms thereof (including any “market flex” provisionsbut not the conditions) including using its reasonable best efforts to seek to enforce its rights under of the Debt Commitment Letter in the event of a breach thereof by the financing provider(sFinancing Commitments so long as such modifications would not and would not reasonably be expected to (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 reduce the aggregate amount of the cash proceeds from the Debt Financing or unless the Transaction Equity Financing to be provided by the Investors is increased by a corresponding amount on substantially the same terms as provided in the Transaction Equity Financing Commitments, (BII) imposes new or additional conditions to adversely impact the initial funding or otherwise expands any ability of the conditions applicable Datatel Entity to timely consummate the receipt Merger or the Asset Purchase or the likelihood of consummation of the Debt Financing, Merger 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 DateAsset Purchase, or (yIII) adversely affect impact the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter or the definitive agreements with respect thereto Financing Commitments and (provided, that Parent may y) amend the Debt Financing Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long who had not executed the Debt Financing Commitment as of the date hereof; provided that, except as contemplated by the Debt Financing Commitment as in effect on the date hereof and with the prior written consent of SunGard Data (not to be unreasonably withheld or delayed), the obligations of the Financing Sources providing the Debt Financing Commitment on the date hereof will not be modified or reduced as a result of such action addition), including using their reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (taking into account the expected timing of the Marketing Period and the Applicable Closing) all conditions applicable to the applicable Datatel Entity to obtaining the Financing at the Applicable Closing set forth therein that are within its control, (iii) enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Debt Financing Commitment or on other terms and conditions acceptable to Parent that would not reasonably adversely impact the timing or amount of the Debt Financing (and provide copies thereof to SunGard Data) and (iv) in the event that all conditions to the Debt Financing Commitment (other than the availability or funding of any of the Transaction Equity Financing) have been satisfied, cause the lenders and the other Persons providing such Debt Financing to fund the Debt Financing required to consummate the Merger and the Asset Purchase. For the avoidance of doubt, in the event that (x) all or any portion of the Debt Financing structured as high yield financing has not been consummated, (y) all of the conditions set forth in Section 8.1 and Section 8.3 and, unless the Asset Purchase Agreement has been terminated pursuant to Section 9.1(b) thereof, all of the conditions set forth in Section 8.1 and 8.3 of the Asset Purchase Agreement have been satisfied or waived (other than those conditions that by their nature are to be expected satisfied at the Applicable Closing, but subject to delay the fulfillment or prevent waiver of those conditions and such conditions being capable of being satisfied) and (z) the Closingbridge facilities contemplated by the Debt Financing Commitment (including any flex terms) are available on the terms and conditions described in the Debt Financing Commitment, then Parent shall cause the proceeds of such bridge financing to be used to replace such high yield financing on the date that the Applicable Closing is required to occur pursuant to Section 2.3 or Section 3.2 of the Asset Purchase Agreement, as applicable.
(c) The Datatel Entities shall as promptly as practicable notify SunGard Data of (i) any termination of any of the Financing Commitments, (ii) the receipt of any written notice or other written communication from any Financing Source with respect to any actual or alleged breach, default, termination or repudiation by any party to any of the Financing Commitments or definitive agreements related to the Financing of any provision of the Financing Commitments or definitive agreements related to the Financing or (iii) receipt of an Escrow Demand Notice (as defined in the Fee Letter). In the event Parent believes in good faith that any portion of the Debt Financing will not be available within the timing contemplated in the Debt Financing Commitment, Parent shall as promptly as practicable notify SunGard Data and shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources on terms and conditions no less favorable to Parent than those set forth in the Debt Financing Commitment as in effect prior to such alternative financing and in an amount sufficient to consummate the Transactions as promptly as practicable following the occurrence of such event. Parent shall promptly deliver to the Company true, SunGard Data true and complete and correct copies of all agreements pursuant to which any such alternative source shall have committed to provide Parent with any portion of the Debt Financing. Parent shall use its reasonable best efforts to cause the Financing Sources providing Debt Financing to fund at the Applicable Closing the Debt Financing required to consummate the Transactions contemplated if all conditions set forth in the Debt Financing Commitment have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Applicable Closing, but subject to the fulfillment or waiver of those conditions and such conditions being capable of being satisfied). For purposes of this Agreement, references to “Financing” and “Debt Financing” shall include the financing contemplated by the Financing Commitments as permitted by this Section 7.15 to be amended, modified or replaced and references to “Financing Commitments” and “Debt Financing Commitments” shall include such documents as permitted by this Section 7.15 to be amended, modified or replaced, in each case from and after 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 Prior to the Closing, (D) the SunGard Entities, the Company and their respective Subsidiaries shall provide to comply with Parent and its obligations under the Debt Commitment LetterAffiliates, 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 officers, employees, advisors and other Representatives of the SunGard Entities, the Company and their respective Subsidiaries to provide to Parent and its Affiliates, all cooperation that is reasonably requested by Parent in connection with the Financing, including: (i) participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with the Debt Financing Sources, lenders prospective lenders, investors and ratings agencies, and reasonably cooperating with the marketing efforts of Parent and its Financing Sources, in each case in connection with the Financing; (ii) (A) using reasonable best efforts to furnish Parent and its Debt Financing Sources as promptly as practicable after the date of this Agreement with all financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent to (1) consummate the Debt Financings at the time the Debt Financings are to be consummated (including the applicable components of adjusted EBITDA derived from the Company’s financial information) and (2) in the event that the Note Escrow Closing occurs, to satisfy any disclosure obligations between the Note Escrow Closing and the other persons providing or committing Closing under the indenture governing the Notes (which disclosure requirements shall not require the provision of any type of information that is not required by paragraph 8 of Exhibit D to provide the Debt Financing Commitment) and (B) furnishing Parent with the Required Financial Information; (iii) assisting with the preparation of materials for rating agency presentations, offering documents, bank information memoranda and similar documents required in connection with the Financing; (iv) executing and delivering any necessary pledge and other security documents, guarantees, mortgages, other definitive financing documents and other certificates or documents as may reasonably be requested by Parent and otherwise reasonably facilitating the granting of a security interest (and perfection thereof) in collateral; (v) providing all documents and other information relating to comply with their obligations under the Company and its Subsidiaries reasonably required to enable the delivery of any customary negative assurance opinion and customary comfort letters relating to the Debt Commitment Letter Financings and definitive financing agreements and obtaining the consents of the Company’s accountants for use of their reports on the audited financial statements of the Company in any materials relating to fund on or before the Effective Time the Debt Financing. ; (vi) using reasonable best efforts to obtain the Company’s accountants’ comfort letters, the legal opinions, surveys and title insurance at the expense of and as reasonably requested by Parent shall keep on behalf of the Debt Financing Sources; (vii) providing unaudited consolidated monthly financial statements of the Company informed on (excluding footnotes) consisting of a current basis balance sheet and in income statement, to the extent the Company customarily prepares such financial statements; (viii) using commercially reasonable detail efforts to ensure that the Debt Financing Sources benefit from the existing lending relationships of the status SunGard Entities; (ix) cooperating reasonably with the Financing Sources requests for due diligence to the extent customary and reasonable; (x) arranging for customary lien and guarantee terminations or releases, as applicable, relating to indebtedness of the SunGard Entities to be delivered at or prior to the Asset Closing; (xi) at least five (5) Business Days prior to the Closing Date, providing all documentation and other information about the Company and each of its efforts to arrange the Debt Financing, and, promptly following request Subsidiaries as is reasonably requested in writing by the Company, provide to the Company copies of all executed Debt Financing Agreements.
Parent at least ten (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (210) Business Days, if at any time Days prior to the Closing Date (i) in connection with the Debt Commitment Letter is terminated for any reason, Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations including without limitation the USA PATRIOT Act; (iixii) 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 event that an Escrow Demand Notice (as defined in the Fee Letter) is delivered, the SunGard Entities will deliver to Parent no later than March 31, 2012 all Required Financial Information (with the Required Financial Information for purposes of this clause (xii) being determined as if all of the Debt Financing were to be marketed in April 2012 and issued and funded on May 1, 2012); and (xiii) if the Note Escrow Closing occurs, delivering to Parent on or prior to May 5, 2012, financial statements and financial data regarding the Company and its Subsidiaries, including the related managements’ discussion and analysis of financial condition and results of operations covering the financial periods of such financial statements, of the type and form that would be required to be included under Items 1, 2 and 3 of Part I of Form 10-Q (but excluding information required by Regulation S-X Rule 3-10) if the Company were required to file a quarterly report on Form 10-Q for the most recently ended fiscal quarter, as well as (A) components of adjusted EBITDA and (B)) research and development expense, in each case derived from the financial information of the Company and its Subsidiaries, that would be included in a customary 144A offering memorandum by the Company; provided, however, that nothing herein shall require such breach cooperation to the extent it would interfere unreasonably with the business or default operations of the Company Entities or require the disclosure of information which SunGard Data or the Company reasonably determines would reasonably be expected to affect jeopardize the availability attorney-client or other similar privilege of a SunGard Entity or any of its Subsidiaries or violate any Law or any Contract to which such SunGard Entity or any of its Subsidiaries is a party; and provided, further, that the Company shall not be required to enter into or perform under any agreement with respect to the Financing that is not contingent upon the Closing or that would be effective prior to or simultaneous with the Closing (in each case other than items specified in clause (ix) relating to assets being purchased in the Asset Purchase Agreement, which the Company shall not be required to enter into or perform if they would be effective prior to the Applicable Closing). Neither the SunGard Entities nor the Company shall be required to pay any commitment or other similar fee or make any other payment (other than reasonable out of pocket costs) or provide or agree to provide any indemnity in connection with the Financing or any of the foregoing prior to the Closing. Datatel shall indemnify and hold harmless the SunGard Entities, the Company, and their respective Subsidiaries 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 (including actions taken at the request of Parent in accordance with this Section 7.15 other than actions pursuant to clause (x)) and any information (other than information furnished by or (iiion behalf of the SunGard Entities, the Company or their respective Subsidiaries) a counterparty indicates utilized in writing connection therewith. Datatel shall, promptly upon request by SunGard Data, reimburse the SunGard Entities, the Company and their respective Subsidiaries for all documented and reasonable out of pocket costs incurred by the SunGard Entities, the Company and their respective Subsidiaries in connection with such cooperation. Without granting any of its ownership or orally that it will not provideother rights, or it refuses the Company hereby consents to provide, all or any portion the use of its and its Subsidiaries’ logos in connection with the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by Financing Commitment; provided that 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 review any documentation containing such logos 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 their use, and provided, further, that (v) such offering or other incurrence of debt does not result logos are used solely in a breach manner that is not intended to nor reasonably likely to harm 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 disparage 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 Company Subsidiaries or the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations reputation or goodwill 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 effectSubsidiaries.
(e) On Unless the Closing DateMarketing Period has ended on or prior to February 10, Parent shall provide all funds required to effect the repayment of all indebtedness under 2012, the Company Credit Agreement in full in accordance with and Datatel shall use their respective reasonable best efforts to cause their respective independent accounting firms to complete as promptly as reasonably practical their audit of the consolidated financial statements of the Company Credit Agreementand Datatel, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to respectively, for 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.fiscal year ended Decem
Appears in 2 contracts
Sources: Merger Agreement (Sungard Capital Corp Ii), Merger Agreement (GL Trade Overseas, 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 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 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 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 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 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 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 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 and (iii) consummate the Financing at the Closing. Parent and Merger Sub shall not permit any amendment, modification or waiver, in each case, that is materially adverse to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts Company to seek be made to enforce its rights under the Debt Commitment Letter in Letters without first consulting with the event of a breach thereof by the financing provider(s) thereunder. Parent shall notCompany, without and will obtain the Company’s prior written consentconsent (which consent shall not be unreasonably withheld, permit any amendment, supplement, replacement conditioned or modification delayed) prior 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 agreeing 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 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 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, 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 Debt Commitment Letter, provided, however, that the Parent shall have the right to replace or amend the Commitment Letter pursuant from time to time between the date hereof and Closing (A) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as of the date hereof or (B) in any other manner, in each case 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 extent such amendment, supplement, replacement, modification or waiver would not, taken as a whole, have the effect of (Ai) reduces reducing the aggregate amount of the cash proceeds from Financing under any Debt Document (except to the Debt extent any other Financing or contemplated by the Commitment Letter is increased by a like amount), (Bii) imposes imposing new or additional conditions to the initial funding receipt of the Financing or otherwise expands amending, modifying or expanding 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 each case in a manner that would reasonably be expected 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 Date, or (y) materially or adversely affect impact the ability of Parent to enforce its rights against other parties satisfy the conditions to obtaining the Debt Commitment Letter or Financing. Without limiting the definitive agreements with respect thereto (providedgenerality of the foregoing, 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 (Aw) to maintain in full force and 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)and comply with its obligations thereunder, (Bx) satisfy, or cause to negotiate and enter be satisfied (or, if deemed advisable by Parent taking into definitive agreements with respect to account 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 Letterexpected timing of Closing, (C) to satisfy on a timely basis (or obtain seek the waiver of), on a timely basis and in a manner that will not impede the ability of the parties to consummate the MergerMergers in advance of the Termination Date, all conditions to receipt of Parent obtaining the full amount of the Debt Financing at the Closing set forth therein that are required to be satisfied by Parent and its Subsidiaries and that are within its the control or subject to its influence andof Parent (including, upon satisfaction after commencement of the conditions set forth Marketing Period and the “marketing period” described in the Debt Commitment Letter), (y) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions contemplated by the Commitment Letter (including any related flex provisions) and otherwise on terms that are acceptable to the Parent and the Financing Sources (such definitive agreements related to the Financing, collectively, with the Commitment Letter, to the “Debt Documents”), and (z) assuming that all conditions contained in the Commitment Letter have been satisfied, 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 its reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders Sources and the other persons Persons providing or committing to provide the Debt such Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements the Debt Documents and to fund on or before the Effective Time Closing Date the Financing required to consummate the Mergers and the other transactions contemplated by this Agreement, including using reasonable best efforts to enforce its rights under the Commitment Letter and the Debt Financing. Documents.
(b) Parent shall keep the Company reasonably informed on a current basis and in reasonable detail of the status of its efforts to arrange the Financing and to satisfy the conditions thereof, and shall give the Company prompt notice (i) of any material breach or material default by any party to the Commitment Letter or other Debt FinancingDocument of which Parent becomes aware, and(ii) of the receipt by Parent or any of its Affiliates of any written notice or other written communication from any Financing Source with respect to (x) any actual, promptly following request threatened or alleged breach, default, termination or repudiation by any party to the Commitment Letter or other Debt Document (including any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to such breach, default, termination or repudiation, and including any proposal by any lender or other Person to withdraw from or terminate the Commitment Letter) or (y) any material dispute or disagreement relating to the Financing between or among any parties to the Commitment Letter or any Debt Document entered into in connection with the Financing and (iii) if for any reason Parent believes in good faith that it will not be able to obtain any portion of the Financing on the terms, in the manner or from the sources contemplated by the Company, provide to Commitment Letter or the Company copies of all executed Debt Financing AgreementsDocuments.
(c) Without limiting If any portion of the foregoingFinancing becomes unavailable on the terms and conditions contemplated in the Commitment Letter (after taking into account flex terms), Parent agrees to shall promptly notify the Company promptly, and in any event within two (2) Business Daysthereof and, if at such portion is necessary to consummate the Closing, use its reasonable best efforts to arrange to obtain alternative debt financing on terms and conditions not less favorable, taken as a whole, to Parent and its Subsidiaries than those in the Commitment Letter in an amount sufficient for Parent to make all required payments in connection with the Mergers and the other transactions contemplated hereby, including payment of the Per Share Consideration or Option Cancellation Payment, any time prior indebtedness required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Mergers (including all indebtedness of the Company and its Subsidiaries required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection therewith) and all other amounts to be paid pursuant to this Agreement and associated fees, costs and expenses of the Mergers and the other transactions contemplated hereby, including the Financing, on the Closing Date (i“Alternative Financing”) as promptly as practicable following the Debt Commitment Letter is terminated for any reasonoccurrence of such event, (iiand the provisions of this Section 5.16, Section 5.17, Section 8.2, Section 8.7, Section 8.13, Section 8.14(b) Parent becomes aware of any breach or default (A) by any Financing Source party and Section 8.17 shall be applicable to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to Alternative Financing, and, for the Debt Commitment Letter or any Debt Financing Agreement if, in the case purposes 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) all references to the proceeds of Financing shall be deemed to include such debt offerings Alternative Financing, all references to Debt Documents shall include the applicable documents for the Alternative Financing and all references to the Financing Sources shall include the Persons providing or other incurrences have been received by Parent in casharranging the Alternative Financing. True, (y) Parent promptly notifies the Company of such substitution complete and reduction and (z) true, correct and complete copies of each material amendment or modification commitment letter and other agreement relating to the Debt Commitment Letter relating thereto Alternative Financing 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 nothing contained in this Section 5.16 will require, and in no event will the reasonable best efforts of Parent be deemed or construed to require, Parent to enter into an Alternative Financing on terms or conditions less favorable, taken as a whole, to Parent and its Subsidiaries than those in the Commitment Letter.
(d) Parent acknowledges and agrees that the obtaining of the Financing, or any Alternative Financing, is not subject to a condition regarding Parent’s or any to Closing.
(e) For the avoidance of its Affiliates’ obtaining funds to consummate doubt, the Merger and obligations contained in this Section 5.16 shall terminate upon the transactions contemplated by this Agreementoccurrence of the Closing.
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 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 On or prior to the terms and conditions of this AgreementFirst Merger Effective Time, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions actions, and use its reasonable best efforts to do, or cause to be done, all things necessary, proper or advisable to obtain, or proper cause its Subsidiaries, as applicable, to arrange and obtain obtain, funds sufficient to fund the Debt Financing on Amounts by the terms First Merger Effective Time. In furtherance and conditions described not in limitation of the foregoing, Parent undertakes not to agree to (i) any amendment without the consent of the Company (x) to the Debt Commitment Letter pursuant to that would reduce 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 Debt Financing provided thereunder to an amount less than Parent would need, together with all other sources of funding available to them, to fund the Debt Financing Amounts by the First Merger Effective Time or (By) imposes new or additional conditions to the initial funding or otherwise expands 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 thereunder in a manner that would reasonably be expected to prevent or materially impede or delay the consummation of the transactions contemplated hereby or (xii) delay or prevent the funding in full termination of the Debt Financing (Commitment Letter to the extent doing so would reasonably be expected to prevent or satisfaction materially impede or delay the consummation of the conditions to the Debt Financing) on the Closing Datetransactions contemplated hereby, or (y) adversely affect including the ability of Parent to enforce its rights against timely pay all or a portion of the Cash Consideration and to timely pay other parties to amounts payable under or in connection with this Agreement. In the Debt Commitment Letter period between the date of this Agreement and the First Merger Effective Date, Parent shall (A) reasonably promptly upon request from the Company, provide the Company updates about the preparation of the financing of the Transactions and (B) promptly inform the Company after becoming aware of any circumstance 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 event which would not reasonably be expected to prevent or materially impede or delay Parent’s ability to obtain funds sufficient to fund the Debt Financing Amounts by the First Merger Effective Time. Without prejudice to Parent’s contractual responsibility to pay the Cash Consideration when due and to pay any other amounts due and payable under or prevent in connection with this Agreement, the Closing). Parent shall promptly deliver Company hereby acknowledges and agrees that, to the Company trueextent other financing (or financing commitments) is available to Parent to timely pay the Debt Financing Amounts, complete and correct copies of any Parent may finance the Debt Financing Amounts using such amendment, modification other financing (or replacementfinancing commitments) or a portion thereof.
(b) Until the earlier of the First Merger Effective Time and the termination of this Agreement pursuant to Article VIII, the Company shall (i) use reasonable best efforts to provide, (ii) cause its Subsidiaries to use reasonable best effort to provide and (iii) use reasonable best efforts to cause its and its Subsidiaries’ respective Representatives to use reasonable best efforts to provide, such cooperation, at Parent’s sole cost and expense, as may be reasonably requested by Parent shallin connection with the Debt Financing or any other financing of Parent in connection with the Merger (collectively, the “Financing”). Without limiting the generality of the foregoing sentence, until the earlier of the First Merger Effective Time and the termination of this Agreement pursuant to Article VIII, the Company shall cause its Affiliates Subsidiaries and Representatives to, use its reasonable best efforts to cause its and their respective Representatives to:
(i) use reasonable best efforts to, upon reasonable advance notice and at mutually agreeable times and locations, participate in a reasonable number of bank meetings, due diligence sessions, lender presentations, drafting sessions, road shows and similar presentations and sessions to and with the financing sources and rating agencies, as applicable, including direct contact between senior management and the other Representatives of the Company, on the one hand, and the financing sources and ratings agencies, as applicable, on the other hand,
(ii) use reasonable best efforts to furnish Parent with such customary historical financial and other factual information (that is, in the case of financial statements, readily available to, and in the form customarily prepared by, the Company and its Subsidiaries) regarding the Company and its Subsidiaries as may be reasonably requested by Parent and is customarily provided in connection with financings of the type contemplated by any Financing or reasonably necessary for the completion of such Financing,
(iii) use reasonable best efforts to provide to Parent and its financing sources at least three (3) Business Days prior to the Closing Date all documentation and other information required by Governmental Entities under applicable “know your customer” and anti-money laundering rules and regulations to the extent reasonably requested in writing by Parent at least ten (10) Business Days prior to the Closing,
(iv) provide the historical financial statements of the Company and its Subsidiaries required by paragraph (iii) of Exhibit B of the Debt Commitment Letter,
(v) provide customary authorization letters and management representation letters in connection with any Financing,
(vi) use reasonable best efforts to facilitate the execution and delivery at the First Merger Effective Time of definitive and ancillary documents, if any, required in connection with or reasonably related to the Financing, and
(vii) use reasonable best efforts to assist Parent in preparing customary offering memoranda, rating agencies presentations, lender presentations, prospectuses and other similar documents in connection with any Financing. Parent shall be permitted to disclose confidential information to any parties providing any Financing, rating agencies and prospective lenders during syndication of such Financing, subject to such parties providing commitments, rating agencies and prospective lenders entering into customary confidentiality undertakings for a syndication with respect to such information. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Financing so long as such logos are used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries.
(c) Notwithstanding anything in this Agreement to the contrary, nothing in Section 5.19(b) or Section 5.20(a) through (d) shall require (i) the Company, its Subsidiaries or any of their respective Representatives to execute or enter into any certificate (including with respect to solvency), instrument, agreement or other document in connection with any Financing which will be effective prior to the First Merger Effective Time (excluding any customary authorization and management representation letters contemplated by Section 5.19(b)(v) (provided that such customary authorization letters (or the bank information memoranda in which such letters are included) shall include customary language that exculpates the Company, each of its Subsidiaries and its and their respective Representatives from any liability in connection with the unauthorized use by the recipients thereof of the information set forth in any such bank confidential information memoranda or similar memoranda or report distributed in connection therewith)), (ii) cooperation or other actions or efforts on the part of the Company, any of its Subsidiaries, or any of their respective Representatives, in connection with any Financing to the extent, in the Company’s reasonable judgement (and in the case of the following clauses (B) and (C), after consultation with its outside legal counsel), it would (A) interfere unreasonably with the business or operations of the Company or its Subsidiaries, (B) subject any director, manager, officer or employee of the Company or any Subsidiary thereof to maintain personal liability or (C) result in a failure of any condition to the obligations of the parties hereto to consummate the Transactions, (iii) the Company or any of its Subsidiaries or any of their respective Representatives to pay any commitment or other fee, incur or reimburse any costs or expenses or incur any other liability or give any indemnities in connection with any Financing that is not reimbursed by Parent, (iv) the board of directors or similar governing body of the Company or any of its Subsidiaries, prior to the First Merger Effective Time, to adopt resolutions, execute any consents or otherwise take any corporate or similar action which will be effective prior to the First Merger Effective Time, approving, or otherwise approve, the agreements, documents or instruments pursuant to which any Financing is made, (v) the Company and its Subsidiaries to provide any access or information if doing so would (in the case of the following clauses (A) and (B), in the Company’s reasonable judgement after consultation with its outside legal counsel) (A) reasonably be expected to violate any fiduciary duty, applicable Law or Company Material Contract to which the Company or such Subsidiary is party, (B) reasonably be expected to result in the loss of the ability to successfully assert attorney-client, work product or similar privileges or (C) violate any Company policies regarding access to such books, Contracts and records or jeopardize the health and safety of any employee, independent contract or other agent of the Company or any of its Subsidiaries; provided, that the Company and its Subsidiaries shall, in the case of clauses (A) through (C), use reasonable best efforts to make appropriate substitute arrangements under circumstances in which the foregoing restrictions do not apply and provide such information or access to the maximum extent possible without running afoul the foregoing restrictions, (vi) the Company or its Subsidiaries to deliver or cause the delivery of any legal opinions or reliance letters in connection with any Financing (excluding any customary authorization and management representation letters contemplated by Section 5.19(b)(v) (provided that such customary authorization letters (or the bank information memoranda in which such letters are included) shall include customary language that exculpates the Company, each of its Subsidiaries and its and their respective Representatives from any liability in connection with the unauthorized use by the recipients thereof of the information set forth in any such bank confidential information memoranda or similar memoranda or report distributed in connection therewith)) which will be effective prior to the First Merger Effective Time, (vii) cooperation that would violate, or result in the waiver of any benefit under, this Agreement, any other Company Material Contract (not entered in contemplation hereof) or any Law to which Company, any of its Subsidiaries, or any of their respective Representatives, is a party or subject or (viii) the Company or any of its Subsidiaries or any of their respective Representatives to prepare or provide (and Parent shall be solely responsible for) (A) pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments in each case giving effect to the transactions desired to be incorporated into any pro forma financial information in connection with any Financing, (B) any description of all or any component of any Financing, or (C) projections or other forward-looking statements relating to all or any component of any Financing. Parent shall be responsible for all fees and expenses related to any Financing, including the compensation of any contractor or advisor of Parent or the Company directly related to actions taken pursuant to this Section 5.19. Accordingly, notwithstanding anything to the contrary herein, Parent shall promptly, upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented compensation or other fees of any contractor or advisor) incurred in connection with the Financing incurred by the Company and its Subsidiaries and their respective Representatives in connection with the Financing, including the cooperation of the Company and the Subsidiaries thereof contemplated by this Section 5.19, and shall indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives from and against any and all losses, claims, damages, liabilities, judgments, obligations, causes of action, payments, charges, fines, assessments and costs and expenses (including reasonable attorneys’ fees, legal and other expenses incurred in connection therewith) suffered or incurred by any of them in connection with this Section 5.19, the arrangement of the Financing or any information used in connection therewith, in each case, except to the extent suffered or incurred as a result of (i) the gross negligence, bad faith or willful misconduct by the Company or any of its Subsidiaries or, in each case, their respective Representatives, (ii) the material breach of this Agreement by the Company or the Company Representative or (iii) any material misstatement in, or omission from, information provided in writing hereunder by the Company or any of its Subsidiaries or their respective Representatives for use in connection herewith or with the Financing.
(d) P▇▇▇▇▇, Merger Sub I and Merger Sub II each acknowledge and agree that obtaining Debt Financing is not a condition to the First Merger Effective Time.
(e) Subject to Section 5.19(b), all non-public or other confidential information provided by the Company to Parent or its Affiliates pursuant to this Section 5.19(a) shall be kept confidential in accordance with the Confidentiality Agreement. The Company agrees that any financing source of Parent is to be treated as a “Representative” as defined in the Confidentiality Agreement.
(f) Notwithstanding anything in this Agreement to the contrary, the Company’s breach of this Section 5.19 or Section 5.20 will not be asserted as the basis for (A) any conditions set forth in Article VI to consummate the Merger having not been satisfied or (B) the termination of this Agreement pursuant to Article VII, in each case, unless such breach is (x) a Willful and Material Breach that (y) causes the conditions in clause (iii) of Exhibit B of the Debt Commitment Letter (provided that the or substantially similar conditions in any replacement to such Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (Bdescribed below) to negotiate and enter into definitive agreements with respect not be satisfied solely as they relate to the Debt Commitment Letter Company and is (z) the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable primary cause of Parent being unable 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 proceeds 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 (I) 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 First Merger 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 (such breach by the Company, provide to the a “Company copies of all executed Debt Financing Agreements.
Breach”) or (cII) 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 replacement to the Debt Commitment Letter or Financing that is required for any Debt Financing Agreement or (B) reason other than Parent’s breach of any other party obligations 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 (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses Parent’s failure to provide, all or satisfy any portion of the conditions related thereto (it being understood that if, and only if, the Company’s Debt Financing contemplated by Breach caused Parent’s breach or Parent’s failure to satisfy any of the Debt Commitment Letter on the terms set forth therein. conditions related thereto, Parent shall promptly provide be deemed not to be in breach and shall be deemed not to have failed to satisfy any information reasonably requested by of the Company relating to any circumstances referred to conditions related thereto for the purposes of clause (II) in this Section 6.13(c5.19(f). 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 Parent and Merger Sub each shall use its commercially reasonable best efforts to obtain the Equity Financing on the terms and conditions set forth in the Equity Financing Commitment. Neither Parent nor Merger Sub shall amend, alter or waive, or agree to amend, alter or waive, any term of the Equity Financing Commitment, without the prior written consent of the Company. Parent and Merger Sub shall use their commercially reasonable best efforts to maintain in effect the Equity Financing Commitment until the earlier of the termination of this AgreementAgreement and the consummation of the transactions contemplated by this Agreement and to enforce their rights under the Equity Financing Commitment. Each of Parent and Merger Sub agrees to notify the Company promptly, and in any event within one (1) Business Day, if at any time prior to the Closing Date (i) the Equity Financing Commitment expires or is terminated for any reason (or if any Person attempts or purports to terminate the Equity Financing Commitment, whether or not such attempted or purported termination is valid), or (ii) the investor party to the Equity Financing Commitment refuses to provide the full Equity Financing on the terms set forth in the Equity Financing Commitment. Except as set forth in Section 4.13(b), in no event shall Parent and Merger Sub be required to seek or obtain equity financing other than the Equity Financing and in no event shall the Guarantors be required to provide equity financing in an amount in excess of the amount set forth in the Equity Financing Commitment.
(b) Parent shall use its commercially reasonable best efforts to obtain the Debt Financing on the terms and conditions (including flex provisions) set forth in the Debt Financing Commitment. Parent shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Financing Commitment, without the prior written consent of the Company, if such amendment, modification or waiver would (i) reduce the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing), unless the Equity Financing is increased by a corresponding amount on terms no less favorable in any material respect (including as to conditionality), or (ii) impose new or additional conditions, or otherwise amend, modify or expand any conditions, to the receipt of the Debt Financing in a manner that could reasonably be expected to prevent, delay or impede the Closing or the funding of the Debt Financing. Notwithstanding the foregoing, Parent and Merger Sub may, to the extent expressly permitted under the Debt Financing Commitments, (A) amend or modify the Debt Financing Commitment to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Financing Commitment as of the date hereof, if the addition of such additional parties, individually or in the aggregate, would not prevent, materially delay or materially impede the availability of the Debt Financing or the consummation of the transactions contemplated by this Agreement, and (B) enter into additional financing commitment letters with respect to the debt financing of the transactions contemplated by this Agreement; provided, that such commitment letters (x) do not contain any new or additional conditions other than those set forth in the Debt Financing Commitment or terms that could reasonably be expected to prevent, delay or impede the Closing or the funding of the Debt Financing and (y) if such commitments are reduced, the Equity Financing Commitment is increased by an amount corresponding to such reduction.
(c) 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 reasonably 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 Commitments, including using its commercially 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 Financing Commitments pursuant to their terms, (provided that ii) satisfy, perform and observe on a timely basis all conditions and, in all material respects, all covenants applicable to Parent or Merger Sub in the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided Financing Commitments and otherwise comply in this Section 6.13)all material respects with its obligations thereunder, (Biii) to negotiate in good faith and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions (including any flex provisions) contemplated by the Debt Financing Commitments, (iv) upon satisfaction of the conditions contained in the Financing Commitments, consummate the Financing at or prior to Closing, and (v) refrain from using any proceeds of the Debt Financing as a dividend to Parent’s stockholders, if necessary. Without limiting the generality of the foregoing, Parent shall give the Company prompt notice (which in no event shall be more than two (2) Business Days from their knowledge thereof): (A) of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by any party to any Financing Commitment or definitive document related to the Financing; and (B) of the receipt of any written notice or other written communication from any member of the Financing Group with respect to any material breach or 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. Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Agreement shall require, and in no event shall the commercially reasonable best efforts of Parent or Merger Sub be deemed or construed to require, either Parent, Merger Sub or any of their Affiliates to (i) pay any fees or other amounts related to the Debt Financing in excess of those contemplated by the Debt Financing Commitments (and related fee letters) or (ii) threaten, commence or pursue litigation, arbitration or other adversarial proceedings against any Debt Financing Source or Affiliate of any of same. Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges and agrees that are it derives no contractual rights, whether as a third party beneficiary or otherwise, under the Debt Financing Commitments or any debt financing document related to the Debt Financing and shall not be entitled to enforce any such Debt Financing Commitments or documents against any agent, arranger, bookrunner, lender, letter of credit issuer or other financing party that is a party to any such Debt Financing Commitments or document (including PNC Bank, National Association, GSO Capital Partners LP and their respective Affiliates) (collectively, the “Financing Group”).
(d) In the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated (including flex provisions) in the Debt Financing Commitment, Parent shall use its commercially reasonable best efforts to promptly arrange and obtain any such portion from alternative sources (the “Alternative Financing”) on terms not materially less favorable to Parent than those contained in the Debt Commitment LetterFinancing Commitments (taking into account flex provisions) (as determined in the sole discretion of Parent). Parent shall promptly provide a true, correct and complete copy of each Alternative Financing commitment (Ctogether with a copy of any related fee letter with only the fee amount redacted) to satisfy on a timely basis the Company.
(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 e) Prior to the Closing, (D) to comply with its obligations under at Parent’s sole expense, 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 Company shall use their commercially reasonable best efforts to enforce their rights under, provide Parent and cause Merger Sub with such cooperation in connection with 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.
Merger (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 including the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information Financing Commitments) as may be reasonably requested by Parent; provided, that (i) no liability or obligation (including any liability or obligation to pay any commitment or other similar fee) of the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit or any of its Affiliates toSubsidiaries under any certificate, without document or instrument shall be effective until the prior written consent Effective Time and none of the Company, Company or any of its Subsidiaries shall be required to take any action that is not contingent upon the Closing (including the entry into of any agreement that is effective before the Effective Time) or enter into any transaction that would be effective prior to the Effective Time, (ii) nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of the Company or any of its Subsidiaries, (iii) none of the Company or any of its Subsidiaries shall be required to issue any offering or information document and (iv) none of the Company or any of its Subsidiaries shall be required to take any action pursuant to this Section 4.13(e) that would subject it to actual or potential liability for which it would not be indemnified hereunder or to bear any cost or expense or to pay any commitment or other similar fee or make any other payment or provide or agree to provide any indemnity in connection with the Financing or any of the foregoing prior to the Effective Time. Subject in all cases to the proviso in the immediately preceding sentence, such cooperation shall include the following: (A) participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the Debt Financing and senior management and Representatives, with appropriate seniority and expertise, of the Company and its Subsidiaries), presentations, road shows, due diligence sessions, and drafting sessions; (B) assisting Parent and Merger Sub with the preparation of customary offering memoranda, bank information memoranda, and similar documents relating to the Debt Financing; (C) delivery to Parent, Merger Sub and their Financing Sources of all information with respect to the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries as may be reasonably requested by Parent (including in connection with Parent’s preparation of pro forma financial statements); (D) participation by senior management of the Company in the negotiation of, and the execution and delivery of, the definitive agreements contemplated by the Debt Financing Commitments; (E) providing and executing documents as may be expected reasonably requested by Parent, including a certificate of the Chief Financial Officer of the Company with respect to materially impairsolvency matters; (F) executing and delivering customary pledge and security documents, delay or prevent consummation affidavits of title, estoppels and ground lease estoppels and consents, and otherwise facilitating the pledge of collateral; (G) cooperating with marketing efforts of Parent, Merger Sub and their Financing Sources for all or any portion of the Debt Financing.
; (dH) Parent shall have using commercially reasonable efforts to obtain accountant’s comfort letters and legal opinions from the right Company’s current outside legal counsel (it being understood that the main enforceability legal opinion relating 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 will be rendered 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 counsel to Parent) reasonably requested by Parent; and (I) using commercially reasonable best efforts to arrange for customary payoff letters, is sufficient to pay all amounts required to be paid Lien terminations and instruments of discharge in connection with the transactions contemplated by this Agreement, (x) the proceeds repayment 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 outstanding Indebtedness of the Company and its Subsidiaries, as contemplated by the Financing Commitments. All non-public or otherwise confidential information regarding the Company or any of its Subsidiaries obtained by Parent, Merger Sub or any of their respective Representatives pursuant to this Section 6.14 4.13(e) shall no longer be kept confidential in effect. Furtheraccordance with the Confidentiality Agreement; provided, that the Company agrees that Parent shall have and Merger Sub may share non-public or otherwise confidential information with the right to substitute commitments Financing Sources in respect of other financings for all or any portion of connection with the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount marketing of the Debt Financing, together and each such Financing Source shall be deemed a “Representative” (as defined in the Confidentiality Agreement) thereunder and the Affiliate of Parent that is a counterparty to the Confidentiality Agreement shall be responsible for any breach of the Confidentiality Agreement by such Financing Source or its officers, directors, employees or other representatives with other cash and cash equivalents available to Parentwhom the confidential information is shared. Parent shall, is sufficient to pay promptly upon request by the Company, reimburse the Company for all amounts required to be paid reasonable out-of-pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in connection with the transactions cooperation contemplated by this Agreement Section 4.13(e). Parent and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all conditions precedent to funding liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by any of such financing are, them in respect connection with the arrangement of certainty of funding, equivalent to the Financing (or more favorable including any action taken in accordance with this Section 4.13(e)) and any information utilized in connection therewith (other than historical information relating to the Company than) or any of its Subsidiaries approved by the conditions precedent Company in writing specifically for use in the Debt Financing offering documents). The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided, that such logos shall be used solely in a manner that is not intended or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries or any of their respective Intellectual Property rights or imply that the Company or any of its Subsidiaries have prepared, endorsed or approved any such materials. Notwithstanding anything to the contrary, the condition set forth in Section 5.2(b), as it applies to the Debt Commitment LetterCompany’s obligations under this Section 4.13(e), shall be deemed satisfied unless the Financing (or any alternative financing) has not been obtained primarily as a result of the Company’s or its Subsidiaries’ knowing and material breach of their obligations under this Section 4.13(e).
(f) Each of Parent and Merger Sub acknowledges and agrees that the obtaining of the Financing, or any alternative financing, is not a condition to supplement Closing. In addition, each of Parent and Merger Sub acknowledges and agrees that any dividend payments by the Parent or replace any of its Affiliates as described in the Debt Financing Commitments are not a condition to Closing.
(g) For purposes of this Section 4.13, unless the context otherwise requires, references to “Alternative Debt Financing”). True” shall include the financing contemplated by the Financing Commitments as permitted to be replaced, correct and complete copies of each alternative amended and/or modified by this Section 4.13, references to “Equity Financing” shall include the equity financing commitment in respect of such Alternative Debt contemplated by the Equity Financing (eachCommitment as permitted to be amended and/or modified by this Section 4.13, 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 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 financing contemplated by the Debt Commitment Letter Financing Commitments as permitted to be replaced, amended and/or modified pursuant by this Section 4.13 and references to clause (ii) below, (ii) any reference in this Agreement to the “Equity Financing Commitment” or “Debt Commitment LetterFinancing Commitments” shall include such documents as permitted to 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 effectreplaced, 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 amended and/or modified by this AgreementSection 4.13.
Appears in 1 contract
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, proper or advisable or proper to arrange and obtain (i) maintain in effect the Debt Financing and the Debt Financing Commitments, (ii) negotiate and enter into definitive financing agreements with respect to the Debt Financing and Debt Financing Commitments on the terms and conditions (including any “flex” provisions) described in the Debt Commitment Letter pursuant Financing Commitments so that such agreements are in effect no later than the Closing, (iii) cause its Representatives to cooperate in the preparation of all documents (including offering memoranda, private placement memoranda, prospectuses and road show presentations, if any) and the making of all filings in connection with the Financing and the other transactions contemplated by the Financing Commitments, and in executing and delivering all documents and instruments related to the terms thereof Financing Commitments, (including any “market flex” provisionsiv) including using satisfy on a timely basis all conditions in the Financing Commitments and comply with its reasonable best efforts obligations thereunder (in each case, that are in its control) and (v) subject to seek to enforce its rights under the satisfaction or waiver of the conditions set forth in the Debt Commitment Letter Financing Commitments, otherwise take, or cause to be taken, all actions and do, or cause to be done, all other things necessary, proper or advisable to consummate the Debt Financing at or prior to the Closing. Buyer shall keep Seller fully informed of material developments in the event respect of a breach thereof by the financing provider(s) thereunderprocess relating thereto. Parent Notwithstanding anything to the contrary herein, the commercially reasonable efforts of Buyer with respect to the Debt Financing shall notnot include any obligation to institute any Action against a Financing Source providing Debt Financing. From the date hereof to the Closing, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made Buyer shall not agree to, or permit, any amendment or modification of, or waiver of any provision under, the Financing Commitments or other final documentation relating to the Debt Commitment Letter if such amendment, supplement, replacement, modification Financing in a manner that would (x) materially delay or waiver prevent the Closing in any respect or (y) (A) reduces reduce the aggregate amount of the cash proceeds from Debt Financing Commitments (including by changing the amount of fees to be paid or original issue discount of the Debt Financing or similar fees) unless the Equity Financing is increased by a corresponding amount, (B) imposes impose new or additional conditions to the initial funding material conditions, or otherwise expands amend, modify or expand any of the conditions in a material manner, 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 (C) 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 or (yD) adversely affect impacts the ability of Parent Buyer to enforce its rights against the other parties to the Debt Financing Commitment Letter or the definitive agreements with respect thereto thereto, the ability of Buyer to consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby, without the prior written consent of Seller (providedwhich consent may not be unreasonably withheld, that Parent may amend the Debt Commitment Letter to add conditioned 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 Closingdelayed). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shallPrior to the Closing, Seller shall use its reasonable best efforts to provide, and shall cause its Affiliates and Representatives toto use reasonable best efforts to provide, use all reasonable cooperation requested by Buyer in connection with the arrangement of the Debt Financing, including using its reasonable best efforts to (Ai) to maintain in effect furnish 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 Sources providing the Debt Financing (as promptly as reasonably practicable) with financial and other pertinent information regarding the Business and the JVs required pursuant to the Financing Commitments; (ii) participate in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for the Financing Sources), drafting sessions, road shows, rating agency presentations and due diligence sessions; (iii) furnish Buyer for distribution to the Financing Sources providing the Debt Financing as promptly as practicable with pertinent information as is customary in connection with the Financing regarding the Business’ and the JVs’ assets and operations and any security required therefor; (iv) assist Buyer and the Financing Sources providing the Debt Financing in the preparation of a customary offering document and bank information memoranda and lender presentations for any of the Financing, and materials for rating agency presentations; (v) take all corporate actions, subject to the consummation of the Closing, reasonably requested by Buyer to permit the consummation of the Financing and to permit the proceeds thereof to be made available to Buyer; (vi) cause the appropriate authorized Representatives of Seller or the Business or the JVs to execute and deliver any pledge and security documents, definitive financing documents or other certificates or documents as may be reasonably requested by Buyer or otherwise facilitate the pledging of Collateral (as defined in the Financing Commitments) for delivery at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction consummation of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing; (vii) cause the appropriate authorized Representatives of Seller to execute and deliver any credit agreements or indentures or other definitive financing documents on terms satisfactory to Buyer at and as of the Closing; (viii) provide, if requested by Buyer, authorization letters (Dincluding with respect to absence of material non-public information in any public-side version of documents distributed to prospective lenders) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate Financing Sources providing the Debt Financing authorizing the distribution of information to prospective lenders; (ix) cooperate reasonably with the Financing Sources providing the Debt Financing’s due diligence, to the extent customary and reasonable; (x) cooperate reasonably with the Financing Sources providing the Debt Financing to obtain accountant’s comfort letters, legal opinions and, at Buyer’s sole cost and expense, surveys, title insurance, landlord, warehouseman and bailee lien and access agreements, deposit and investment control agreements, in each case as reasonably requested by Buyer and customary for financings similar to the Debt Financing; (xi) at least five days prior to the Closing, provide all documentation and other information about the Business or the JVs as is reasonably requested in writing by Buyer which relates to applicable “know your customer” and anti-money laundering rules and regulations including without limitation the USA PATRIOT ACT; (xii) negotiate in good faith a subordination arrangement with respect to the Notes on substantially the terms of the agreements attached to the Notes (with any immaterial modifications to such terms as are reasonably satisfactory to the Seller and the Financing Sources providing the Debt Financing); and (xiii) providing (A) documents reasonably requested by Buyer or its Financing Sources relating to the repayment of the existing Indebtedness of the Business or the JVs and the release of related Liens (except Permitted Liens), including customary payoff letters; and (B) an executed certificate of the Person who will be President or Controller of the Business or the JVs immediately following the Closing with respect to solvency matters substantially in the form attached to the Debt Financing Commitment. Notwithstanding anything herein to the contrary, (w) nothing in this Section 7.13 shall require such cooperation to the extent it would require Seller to waive or amend any terms of this Agreement, (x) nothing in this Section 7.13 shall require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere with the ongoing operations of Seller, the Business, the JVs or their respective Affiliates, (y) nothing in this Section 7.13 shall allow any sampling or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media and (z) no liability or obligation of Seller, the JVs or any of their respective Affiliates, or any of their respective Representatives, under any certificate, agreement, arrangement, document or instrument relating to the Financing shall be effective until the Closing. Buyer Indemnifying Party shall indemnify and hold harmless Seller, the JVs, their respective Affiliates and their respective directors, officers, employees and Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of the Financing and any information used in connection therewith, in each case other than to the extent any of the foregoing arises from the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement by, Seller, the JVs or their respective Affiliates. Any information provided by Seller in connection with seeking the Financing shall be prepared in good faith. The Buyer shall reimburse Seller for all of the documented reasonable out of pocket costs and expenses incurred by Seller, the JVs or their respective Affiliates in connection with this Section 7.13 on or prior to the Effective Time. In Closing or promptly following the event that all Closing or the termination of this Agreement.
(c) If, notwithstanding the use of commercially reasonable efforts by Buyer to satisfy its obligations under Section 7.13(a), any of the Debt Financing or the Debt Financing Commitments (or any definitive financing agreement relating thereto) expires or is terminated prior to the Closing, in whole or in part, for any reason, Buyer shall (i) promptly notify Seller of such expiration or termination and the reasons therefor and (ii) promptly arrange for alternative financing on terms and conditions precedent expressly no less favorable to Buyer (taking into account any “market flex” provisions), in the aggregate, 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 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 reasonCommitments, (iithe “Required Financing Alternative”) Parent becomes aware of any breach or default (A) by any Financing Source party from other sources to replace 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 financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent such expired or terminated commitments or agreements, which Required Financing Alternative shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to be 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 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 for the consummation of 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).
(fd) Notwithstanding anything to the contrary contained hereinin Section 7.13(a), Parent’s obligations hereunder are not subject to a condition regarding Parent’s or at any of its Affiliates’ obtaining time Buyer may replace the Debt Financing with alternative financing arrangements which (i) provide Buyer with sufficient funds to consummate the Merger and the transactions contemplated by this AgreementAgreement prior to or concurrent with the Closing and (ii) do not prevent or materially impair or delay the Closing (together with the Required Financing Alternative, the “Financing Alternative”). In the event Buyer replaces the Debt Financing with any Financing Alternative, the terms of Section 7.13(a) shall no longer apply with respect to the Financing, but shall thereafter apply with respect to the Financing Alternative.
Appears in 1 contract
Sources: Asset Purchase and Contribution Agreement (Chemtura 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 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 proceeds of the Equity Financing on the terms and conditions described in the Debt Equity Commitment Letter pursuant to the terms thereof Letter, including: (including any “market flex” provisionsi) 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 entering into definitive agreements with respect thereto thereto, (providedii) satisfying, or causing to be satisfied, on a timely basis all conditions applicable to, and within the control of, Parent, Merger Sub or their respective representatives in such definitive agreements and (iii) causing such Equity Financing to be funded at the Closing such that Parent or Merger Sub may amend pay all of the Debt amounts payable by them in connection with the Merger and the other Transactions.
(b) Parent shall not agree to any amendment or modification to, or grant any waiver of, any condition or other provision under the Equity 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 without the Closing). Parent shall promptly deliver prior written consent of the Company to the Company true, complete and correct copies of extent any such amendment, modification or waiver would reduce the aggregate amount of cash proceeds available from the Equity Financing to fund the Merger and the other Transactions (as compared to the amount of such aggregate proceeds contemplated under the Equity Financing as in effect on the date hereof) or would impose new or additional conditions that would be reasonably likely to (i) prevent or materially delay or impair the ability of Parent or Merger Sub to consummate the Merger and the other Transactions or (ii) adversely impact the ability of Parent or Merger Sub to enforce their respective rights against the other parties to the Equity Commitment Letter. Parent shall not release or consent to the termination of the obligations of the other parties to the Equity Commitment Letter, except for assignments and replacements of investors in accordance with the express terms of the Equity Commitment Letter. Notwithstanding anything to the contrary set forth herein, Parent shall have the right to amend, replace, supplement or otherwise modify, or waive any of its rights under, the Equity Commitment Letter or any definitive agreements with respect to the Equity Financing, and/or substitute debt or other equity financing for all or any portion of the Equity Commitment Letter from the same and/or alternative financing sources; provided that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Equity Commitment Letter or such definitive agreements with respect to the Equity Commitment Letter and/or substitution for all or any portion of the Equity Commitment Letter shall not (i) expand upon the conditions contained therein in any way or prevent or cause any delay of the consummation of the Merger or the other Transactions or (ii) otherwise result in financing terms that are materially less favorable, in the aggregate, to Parent, Merger Sub and the Company than those in the Equity Commitment Letter as in effect on the date hereof.
(bc) If any portion of the Equity Financing becomes or could become unavailable in the manner or from the sources contemplated in the Equity Commitment Letter, (i) Parent shallshall immediately so notify the Company in writing and (ii) Parent and Merger Sub shall arrange and obtain, 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, alternative financing from the same or alternative sources in an amount sufficient to consummate the Debt Commitment Letter (Merger and the “Debt Financing Agreements”) other Transactions on the terms and conditions that are not materially less favorable favorable, in the aggregate, to Parent Parent, Merger Sub and the Company than those contained in the Debt Equity Commitment Letter as in effect on the date hereof, as promptly as practicable following the occurrence of such event.
(d) Parent shall (i) furnish to the Company complete, correct and executed copies of the agreements for the Equity Financing or any alternative financing promptly upon their execution, (ii) give the Company prompt notice of any breach or threatened breach of which Parent or Merger Sub is or becomes aware by any party to any of the Equity Commitment Letter, (C) to satisfy on a timely basis (any alternative financing commitment or obtain the waiver of), and in a manner that will not impede the ability any alternative financing agreement 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 which 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 Merger Sub is or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letterbecomes aware or any termination or threatened termination thereof, and (Eiii) 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 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 Equity 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 (Balternative financing), 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 For the Closing Dateavoidance of doubt, Parent shall provide all funds required to effect and Merger Sub acknowledge and agree that neither the repayment obtaining of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit AgreementEquity Financing nor any alternative financing, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything including any debt financing, is a condition 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 Parent and Merger Sub to consummate the Merger and the transactions contemplated by this Agreementother Transactions and reaffirm their obligations to consummate the Merger and the other Transactions irrespective and independently of the availability of the Equity Financing or any alternative financing, subject to fulfillment or waiver of the conditions set forth in Article 7.
Appears in 1 contract
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 Parent shall not agree to any amendment or modification to, or grant any waiver of, any provision under the Commitment Letter without the prior written consent of the Company if such amendment, modification or waiver would (i) impose additional conditions to the receipt of the Financing on the Closing Date, or otherwise amend or modify any such conditions in a manner that is adverse in any material respect to Parent or the Company, (ii) individually or in the aggregate with all other amendments, modifications or waivers to the Commitment Letter, reasonably be expected to prevent or make less likely to occur the funding of the commitments thereunder on the Closing Date or (iii) reduce the aggregate amount of the available commitments thereunder other than to the extent the representations set forth in Section 4.07(c) would continue to be true after giving effect thereto (the foregoing clauses (i) through (iii), the “Prohibited Changes”); provided that, without the consent of the Company, Parent may amend (it being understood that no such amendment shall constitute a Prohibited Change) the Commitment Letter to add additional lenders, arrangers, bookrunners and agents or to implement or exercise any of the “market flex” provisions contained in any Fee Letter. Notwithstanding the foregoing or any provision of this Agreement to the contrary, Parent shall be entitled to replace the Commitment Letter by entering into definitive documentation with respect to the Financing on or prior to the Closing so long as such definitive documentation is on terms and conditions of this Agreement, consistent with the Commitment Letter and would not result in Prohibited Changes.
(b) 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, advisable or proper to arrange and obtain consummate the Debt Financing on the terms and subject to the conditions described set forth in the Debt Commitment Letter pursuant Letter, including, prior to the terms thereof consummation of the Financing in an aggregate amount that is sufficient (including taken together with any “market flex” provisionscash available to Parent) including for the representation set forth in Section 4.07(c) to continue to be true, 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 including any definitive documentation entered into in this Section 6.13connection therewith), (Bii) satisfy all conditions in the Commitment Letter (including any definitive documentation entered into in connection therewith) applicable to negotiate Parent and enter Merger Sub to obtaining the Financing thereunder as promptly as practicable (taking into account the expected timing of the Effective Time) (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 or the accuracy of any of its representations under this Agreement), (iii) as promptly as practicable (taking into account the expected timing of the Effective Time), negotiate, execute, and deliver definitive agreements documentation with respect to the Debt Financing contemplated by the Commitment Letter (the “Debt Financing Agreements”) on the terms and subject to the conditions that are contemplated by the Commitment Letter (or on terms not materially less favorable to Parent and Merger Sub than those contained the terms and conditions (including market flex provisions) set forth in the Debt Commitment Letter and related Fee 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 (v) subject to its influence and, upon the satisfaction of the conditions set forth in the Debt Commitment LetterLetter and Sections 6.01 and 6.02, cause the Financing Sources party thereto to consummate fund the Debt Financing at thereunder on 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 TimeClosing Date. 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 If any portion of the Debt Financing contemplated by otherwise becomes unavailable, and such portion is reasonably required to fund 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 aggregate Per Share Merger Consideration and all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received fees and expenses payable 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 Merger Sub in connection with the transactions contemplated by this Agreement, (x) Parent and Merger Sub will use their reasonable best efforts to arrange to obtain in replacement thereof alternative financing from alternative sources in an amount sufficient to pay the proceeds of aggregate Per Share Merger Consideration and such debt offerings or other incurrences have been received fees and expenses payable by Parent and Merger Sub. Notwithstanding anything in cashthis Section 5.15 to the contrary, (ysolely to the extent the representations set forth in Section 4.07(c) Parent promptly notifies the Company of such substitution and reduction and (z) shall continue to be true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto Parent 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 the proceeds of consummated equity securities issuances or equity linked, convertible, exchangeable or other financings debt securities issuances or other incurrences of debt for all or any portion of the Debt amount contemplated to be provided by the Bridge Financing from contemplated by the same and/or alternative financing sources so long as Bridge Commitment Letter and may reduce 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 commitments thereunder. Any reference 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) “Financing” will include the conditions precedent set forth in the Debt Commitment LetterBridge Financing and any such alternative, to supplement replacement or replace the Debt Financing (“Alternative Debt Financing”). Truesubstitute financing, 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 FinancingCommitment Letter” shall will include the debt financing contemplated by the Debt Bridge Commitment Letter as modified pursuant and the commitment letter, if any, and the corresponding fee letter with respect to clause any such alternative financing or such replacement financing.
(c) Upon the Company’s reasonable request, Parent will keep the Company reasonably informed on a reasonably current basis of the status of Parent’s and Merger Sub’s efforts to arrange the Financing and to satisfy the conditions thereof, including, upon the Company’s reasonable request, advising and updating the Company, in a reasonable level of detail, with respect to status of definitive documentation for the Financing and any funding thereof. Parent shall give the Company prompt written notice (i) of any material breach or default, repudiation, or termination of any provisions of the Commitment Letter or definitive documentation relating to the Financing (other than, in the case of the commitments with respect to the Bridge Financing or the Bridge Financing, in accordance with the terms thereof), in each case, by any party thereto, of which Parent becomes aware or (ii) belowif for any reason Parent determines in good faith that it will not be able to obtain all or any portion of the Bridge Financing under the Bridge Commitment Letter on the Closing Date (other than as a result of a reduction in accordance with the terms thereof).
(d) In no event shall the receipt or availability of any funds or financing (including the Financing) by or to Parent or any of its Affiliates or any other financing transaction be a condition to any of the obligations of Parent or Merger Sub hereunder, it being understood that nothing in this Section 5.15(d) is intended to limit (i) the provision of the Required Information pursuant to Section 2.02 or (ii) any reference condition contained 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 6.01 or 6.02.
(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 (Ixia)
Financing. (a) Subject to the terms Each of 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, 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 Letters with respect to the terms thereof conditionality, timing, availability, and aggregate amount of the Financing (including any “market flex” provisions) the amounts to be funded thereunder at the Closing), including using its reasonable best efforts efforts, subject to the conditions set forth in Section 7.8(a), to seek to enforce its rights under the Debt Commitment Letter Letters in the event of a breach thereof by the financing Financing provider(s) thereunder. Neither Parent nor Merger Sub 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 or remedy under, the Equity Commitment Letter (other than to increase the amount of the Equity Financing) without the Company's prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). Neither Parent nor Merger Sub shall permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter without the 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 Debt Financing, (ii) impairs in any material respect the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt availability of the Debt Financing, or otherwise expands, (iii) amends or modifies any other provision of the conditions precedent to 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 any party hereto to enforce its or cause the enforcement of the rights against other parties to of Parent or Merger Sub under any of the Debt Commitment Letter or the definitive agreements with respect relating thereto (or imposes additional material obligations on the Company, its Subsidiaries or their respective Affiliates prior to the Closing Date; provided, however, that Parent and Merger Sub may amend or restate the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would parties thereto who had not reasonably be expected to delay executed the Debt Commitment Letter as of the date hereof, and may otherwise amend, modify or prevent restate the Closing)Debt Commitment Letter in any manner not inconsistent with this sentence. Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) waiver. Each of Parent shall, and Merger Sub shall cause its Affiliates and Representatives to, use its 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 on the terms and conditions contained in the Debt Commitment Letter (or on terms no less favorable (taken as a whole) to Parent), (ii) to satisfy on a timely basis (taking into account the “expected timing of the commencement of the Marketing Period) all conditions applicable to it in such definitive agreements that are within its control, (iii) upon satisfaction of such conditions (without waiver thereof not consented to by Parent), to consummate the Financing at 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 Commitment Letters.
(b) If any portion of the Debt Financing Agreements”) becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter and the related fee letters, (i) Parent and Merger Sub shall promptly notify the Company and (ii) Parent and Merger Sub shall use their 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 in any respect from the standpoint of Parent and the Company 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 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 any related fee letters as promptly as reasonably practicable following the Effective Time occurrence of such event (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 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 in respect of such Alternative Debt Financing (each, a “"New Debt Commitment Letter”)") to the Company (redacted, together with all related fee letters and associated engagement letters (solely in the case of the fee letter, consistent 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 redactedSection 3.8), 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 “"Financing" or 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 “"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 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 at the time in question and each the New Debt Commitment Letter Letters to the extent then in effect.
(ec) On Upon the Closing Daterequest of the Company, Parent 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. Parent shall give the Company prompt notice: (fi) Notwithstanding anything of any breach of any material provisions of any of the Commitment Letters or definitive document related to the contrary contained hereinFinancing by any party to any Commitment Letters or definitive document related to the Financing of which it has knowledge; (ii) of the receipt of any written notice or other written communication from a financing source for the Financing with respect to any actual or potential breach, Parent’s obligations hereunder are not subject default, termination or repudiation by any party to a condition regarding Parent’s any Commitment Letters or any definitive document related to the Financing or any material provisions of its Affiliates’ obtaining funds the Commitment Letters or any definitive document related to consummate the Financing; and (iii) of the occurrence of an event or development that Parent or Merger Sub expects to have a material and adverse impact on the transactions ability of Parent, Merger Sub or the Company (or the Surviving Corporation) to obtain all or any portion of the Financing contemplated by this Agreementthe Commitment Letters on the terms, in the manner or from the sources contemplated by the Commitment Letters or the definitive documents related to the Financing.
Appears in 1 contract
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, at Buyer’s cost, 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 or prior to the date the Closing is required to be consummated pursuant to the terms hereof, including by (i) maintaining in effect the Equity Commitment Letter 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 except that Buyer may amend or replace the Debt Commitment Letter in or Equity Commitment Letter or replace 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, Financing Entities under the Debt Commitment Letter if such amendment, supplement, replacement, modification amendment or waiver replacement does not (A) reduces reduce the aggregate amount of available under the cash proceeds from Equity Commitment Letter and Debt Commitment Letter below the Debt Financing or aggregate amount available thereunder on the date hereof (unless the Purchase Price has been reduced hereunder), (B) imposes new or add 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 precedent that would reasonably be expected to adversely impact the ability of Buyer to timely consummate the Closing, and Buyer provides Seller after any such amendment or replacement a copy thereof) or (xC) otherwise materially prevent, delay or prevent impair the funding in full availability of the Debt Financing (required to consummate the transactions contemplated by this Agreement or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent Buyer to enforce its rights against other parties to the Financing Entities under the Debt Commitment Letter or the any Definitive Agreements, (ii) negotiating and entering into definitive agreements with respect thereto to the Debt Financing (provided, that Parent may amend the “Definitive Agreements”) consistent with the terms and conditions contained in the Debt Commitment Letter (including, as necessary, the “flex” provisions) or on other terms reasonably acceptable to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action Buyer that would not reasonably be expected to delay or prevent materially and adversely impact the ability of Buyer to consummate the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of Buyer provides Seller after any such amendmentamendment or replacement a copy thereof and (iii) satisfying on a timely basis all conditions in the Debt Commitment Letter and the Definitive Agreements and complying with its obligations thereunder. Buyer shall comply with its obligations, modification or replacementand enforce its rights, under the Debt Commitment Letter and Definitive Agreements in a timely and diligent manner.
(b) Parent At Buyer’s sole cost and expense, prior to the Closing, Seller shall, and shall use commercially reasonable efforts to cause its applicable Affiliates and their respective Representatives to, use its cooperate with Buyer’s reasonable best efforts requests as may be necessary to obtain the Debt Financing, including by: (A1) participating in a reasonable and limited number of meetings, presentations and due diligence sessions, at reasonable times and with reasonable advance notice, (2) furnishing Buyer and the Financing Entities as promptly as reasonably practicable following the delivery of a request therefor to maintain Seller by Buyer (which notice shall state with specificity the information requested) such financial and other information regarding each member of the Company Group or Non-Controlled Joint Ventures Group as is reasonably available to Seller at such time and is customarily required in effect connection with the execution of financings of a type similar to the Debt Financing, (3) providing a customary title affidavit and (4) executing and delivering one or more customary authorization letters in connection with the confidential information memoranda as contemplated by the Debt Commitment Letter or otherwise that are customarily required in connection with the financings of a type similar to the Debt Financing. Nothing contained in this Section 5.22 or otherwise shall require Seller or any of its Affiliates at any time or any member of the Company Group or Non-Controlled Joint Ventures Group prior to the Closing to be an issuer or other obligor with respect to the Debt Financing. Buyer shall, promptly upon request by ▇▇▇▇▇▇, reimburse Seller or any of its Affiliates for all reasonable out-of-pocket costs and expenses (provided that including attorneys’ fees) incurred in connection with the cooperation contemplated by this Section 5.22, whether or not the transactions hereunder are consummated or this Agreement is terminated.
(c) If for any reason all or any portion of the Debt Financing becomes unavailable on the terms and conditions or from the sources contemplated by the Debt Commitment Letter may be amendedLetter, supplementedBuyer shall promptly notify Seller and use its commercially reasonable efforts to arrange and obtain, replaced, modified or waived as provided in this Section 6.13), (B) and to negotiate and enter into definitive agreements with respect to, alternative debt financing for any such portion from the same or alternative sources (the “Alternative Financing”) (i) as promptly as practicable following the occurrence of such event (and in any event on or prior to the date on which the Closing should have occurred pursuant to Section 2.2) and (ii) in an amount sufficient to, when taken with (y) the available portion of the Debt Financing and (z) the Equity Financing, consummate the Closing upon the terms contemplated by this Agreement; provided, that, in no event shall Buyer be required to, and in no event shall its commercially reasonable efforts be deemed or construed to require it to, obtain alternative financing that includes terms and conditions that are more onerous than the terms and conditions set forth in the Debt Commitment Letter (the taking into account any “Debt Financing Agreements”market flex” provisions applicable thereto) on the terms and conditions that are not materially less favorable or would require it to Parent than pay any fees or agree to pay any interest rate amounts or original issue discount, in either case, in excess of those contained in contemplated by the Debt Commitment Letter, Letter (Ctaking into account any “market flex” provisions applicable thereto) 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 which include any conditions to receipt the consummation of such alternative debt financing that would reasonably be expected to make the full amount funding of the Debt Financing at the Closing set forth therein that are within its control or subject such alternative debt financing less likely to its influence andoccur, upon satisfaction of than the conditions set forth in the Debt Commitment Letter, to consummate the Debt . If any Alternative Financing at or prior to the Closing, (D) to comply is obtained in accordance 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 5.22(c), 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 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 notify Seller thereof 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 as modified pursuant to clause (ii) below”, (ii) any reference in this Agreement to the “Financing”, “Debt Commitment Letter” shall be deemed to include the Debt and “Financing Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question Letters” (and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference other like term in this Agreement to “fee letter” Agreement) 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 effectsuch Alternative Financing, as 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 1 contract
Sources: Securities Purchase Agreement (Algonquin Power & Utilities Corp.)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Gold 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 or prior to the Closing Date on the terms and conditions (including the "flex" provisions) described in the Debt Commitment Letter pursuant to the terms thereof (including which, for purposes of this Section 5.08, shall include any “market flex” provisions) Fee Letter), including using its reasonable best efforts to seek (i) satisfy on a timely basis all conditions and covenants applicable to Gold and in its control in the Debt Commitment Letter, (ii) enter into definitive agreements with respect thereto on the terms and conditions (as such terms may be modified or adjusted in accordance with the terms of, and within the limits of, the flex provisions contained in any Fee Letter) no less favorable to Gold and the Company, taken as a whole, than those contemplated by the Debt Commitment Letter, including for the avoidance of doubt the "flex" provisions of any Fee Letter, and which terms and conditions will not expand the conditions to the Closing to the funding on the Closing Date of the Debt Financing in a manner that could delay or prevent or the funding thereof, and (iii) enforce its rights under the Debt Commitment Letter in and, if applicable, the event of a breach thereof by the financing provider(s) thereunderdefinitive agreements with respect thereto. Parent Gold shall not, without the Company’s prior written consent, permit not agree to any amendment, supplement, replacement amendments or modification to be made modifications to, or grant any waiver of waivers of, any condition or other provision under, under the Debt Commitment Letter without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed) if such amendment, supplement, replacement, amendment or 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 (xi) delay or prevent reduce the funding in full aggregate amount of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) in a manner that would adversely affect impact the ability of Parent Gold, Holdco or Sub to enforce consummate the Mergers or to provide for the Financing Uses, (ii) impose new or additional conditions in a manner that would adversely impact the ability of Gold, Holdco or Sub to obtain the Debt Financing or (iii) make it less likely that the Debt Financing would be funded. Gold shall use its rights against other parties reasonable best efforts to maintain in effect the Debt Commitment Letter or the (including any definitive agreements with respect thereto (providedrelating thereto) until the transactions contemplated by this Agreement are consummated; provided that, that Parent subject to the limitations set forth in Section 5.08(b), Gold 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 such action would of the date hereof and may otherwise amend, modify or restate the Debt Commitment Letter in any manner 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 replacementinconsistent with this paragraph.
(b) Parent In no event shall Gold or any of its affiliates (i) award any agent, broker, investment banker, financial advisor or other firm or person any financial advisory role on an exclusive basis, or (ii) engage any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis, in the case of clauses (i) and (ii) in connection with the Mergers or the other transactions contemplated hereby.
(c) If any portion of the Debt Financing expires or otherwise becomes unavailable on the terms and conditions (including any "flex" provisions) contemplated in the Debt Commitment Letter, Gold shall, and shall cause its Affiliates and Representatives toas promptly as practicable following the occurrence of such event, use its reasonable best efforts to arrange and obtain a new debt commitment letter (A) to maintain in effect the a "New Debt Commitment Letter Letter") and related fee letter (provided with the fees, economic flex terms, securities demand (other than provisions regarding the timing thereof and the result of non-compliance therewith) and other proprietary economic terms therein redacted) (a "New Fee Letter") from the same sources or alternative sources providing for debt financing in an amount sufficient to satisfy the Financing Uses, on terms and conditions (including any "flex" provisions) that the Debt Commitment Letter may be amendedare at least as favorable, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to enforceability, financing structure and conditionality, to Gold and the Debt Commitment Letter (Company in the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than aggregate as 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 Gold 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 deliver 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 obtainedand New Fee Letter. In the event Gold enters into any such New Debt Commitment Letter, (i) any reference in this Agreement to the “"Debt Financing” " shall include mean the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, and (ii) any reference in this Agreement to the “"Debt Commitment Letter” " shall be deemed to include the Debt Commitment Letter which is and any Fee Letter to the extent not superseded by a New Debt Commitment Letter or New Fee Letter, as the case may be, 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 or New Debt Commitment Fee Letter to the extent then in effect.
(d) Gold shall keep the Company reasonably informed as promptly as practicable of the status of its efforts to arrange the Debt Financing and promptly provide copies of all initial drafts and substantially final drafts of documents provided to or from the lenders or otherwise related to the Debt Financing to the Company. Without limiting the generality of the foregoing, Gold shall (i) furnish the Company complete, correct and executed copies of any amendments to the Debt Commitment Letter promptly upon their execution, (ii) give the Company prompt notice of any breach or threatened breach by any party of the Debt Commitment Letter, or of any condition not likely to be satisfied, in each case of which Gold, Holdco or Sub becomes aware, and of any termination or threatened termination thereof, and (iii) promptly provide the Company with any additional information reasonably requested by the Company from time to time relating to Gold's efforts to arrange the Debt Financing.
(e) On Prior to the Closing, the Company shall, and shall cause the Company Subsidiaries and use reasonable best efforts to cause the Company Representatives to, provide to Gold all cooperation reasonably requested by Gold in connection with the Debt Financing, including using reasonable best efforts to (i) participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) assist with the preparation of customary materials for rating agency presentations, offering documents, consent solicitation statements and/or tender offer documentation, private placement memoranda, bank information memoranda, prospectuses and similar documents, (iii) execute and deliver customary definitive financing documents and closing documents, including secretary's certificates, corporate documents or evidence of authorization, in each case to be effective as of the Company Merger Effective Time, but, for the avoidance of doubt, no solvency certificate, (iv) furnish Gold and the Financing Sources with customary financial and other pertinent information regarding the Company as may be reasonably requested by Gold, 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 type and form customarily included in private placements under Rule 144A of the Securities Act, to consummate the offerings of any debt securities contemplated by the Debt Commitment Letter; provided, however, that the Company shall not be required to furnish any such financial statements or financial data prior to the date the Company is required to file such financial statements and financial data with the SEC, (v) obtain customary accountants' comfort letters, authorization letters to Financing Sources with respect to the absence of material non-public information and legal opinions as reasonably requested by Gold, (vi) furnish Gold with reasonable documents or other information required by the Financing Sources with respect to the Debt Financing under applicable "know your customer" and anti-money laundering rules and regulations, including the U.S.A. Patriot Act of 2011, in each case, at least three (3) Business Days prior to the Closing Dateif such information was requested at least ten (10) days prior to the Closing, Parent (vii) cooperate with the customary marketing efforts of Gold and its Financing Sources for all or any portion of the Debt Financing or any New Debt Commitment, (viii) cooperate with the Financing Sources' customary securities underwriting and secured lending due diligence investigation, to the extent customary and reasonable, (ix) cooperate with Gold in any consent solicitation or offer process involving the Company's existing publicly traded debt securities (including, without limitation, by assisting with the launch of consent solicitations with respect to such securities and/or offering to purchase such securities), in each case, solely to the extent any such process is managed by and paid for by Gold and (x) otherwise take reasonable actions within its control to cooperate in satisfying the conditions precedent set forth in any definitive document related to the Financing; provided, however, that nothing herein shall provide all funds require such cooperation to the extent it would interfere unreasonably with the business or operations of the Company or its Subsidiaries; provided, further, that neither the Company nor any of its Subsidiaries shall be required to effect the repayment of all indebtedness under commit to take any action or otherwise bind the Company Credit Agreement or any of its Subsidiaries in full any way to any obligation under an agreement or document related to the Debt Financing that is (a) not contingent upon the Closing (including the entry into any purchase agreement) or that would be effective prior to the Company Merger Effective Time or (b) prohibited by applicable Law. None of the Company or any of its Subsidiaries shall be required to pay any commitment fee or other similar fee or make any other payment other than reasonable out-of-pocket costs or incur any other liability or provide or agree to provide any indemnity in connection with the Debt Financing or any of the foregoing prior to the Company Merger Effective Time. Gold shall indemnify and hold harmless the Company, the Company Subsidiaries and the Company 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 (including any action taken in accordance with this Section 5.08(e)) and any information utilized in connection therewith (other than historical information relating to the Company Credit Agreementor the Company Subsidiaries); in each case, subject except to compliance the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred as a result of the Company's, the Company Subsidiaries' or the Company Representatives' gross negligence, or willful misconduct, as applicable. Notwithstanding anything to the contrary, the condition set forth in Section 6.02(b), as it applies to the Company's obligations under this Section 5.08(e), shall be deemed satisfied unless the Debt Financing (or any alternative financing) has not been obtained primarily as a result of the Company's or its Subsidiaries' willful breach of their obligations under this Section 5.08(e). Gold shall, promptly upon request by the Company, reimburse the Company for all documented and reasonable out-of-pocket costs incurred by the Company or its Subsidiaries in connection with Section 6.14(a)(iii)such cooperation.
(f) Notwithstanding anything The Company shall deliver all customary notices and take all other reasonable actions solely in the Company's control required to cause, and shall use commercially reasonable efforts to otherwise effect, the repayment in full on the Closing Date (or in the case of letters of credit, cash collateralization, to the contrary contained hereinextent that Gold shall not have entered into an alternative arrangement with the issuing bank) of all obligations then outstanding under, Parent’s obligations hereunder and the termination on the Closing Date of, that certain Amended and Restated Credit Agreement, dated April 23, 2013, among the Company, as borrower, the lenders party thereto and The Royal Bank of Scotland Plc, as administrative agent (it being understood that the payment of such amounts and the provision of any cash collateral or backstop or replacement letters of credit shall be made or provided by Gold).
(g) The Company hereby consents to the use of its and the Company's Subsidiaries' logos in connection with the Debt Financing; provided, that, such logos are used solely in a manner that is not subject intended to a condition regarding Parent’s 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 or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreementtheir respective products, services, offerings or intellectual property rights.
Appears in 1 contract
Financing. (a) Subject to Purchaser and Parent shall, and shall cause Borrower (as defined in the terms and conditions of this AgreementDebt Commitment Letter) 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 necessarynecessary to arrange, advisable or proper to arrange consummate and obtain the proceeds of the Debt Financing on the terms and conditions described not less favorable than those set forth in the Debt Commitment Letter pursuant on or prior to the terms thereof Closing Date (including any “market flex” provisions) including using its but not limited to reasonable best efforts to seek to enforce its rights under (i) maintain in effect the Debt Commitment Letter Letter, (ii) satisfy on a timely basis all conditions to the Debt Financing that are within Parent’s, Purchaser’s and Borrower’s control, (iii) negotiate and enter into definitive agreements with respect to the Debt Financing, and (iv) in the event that the Offer Conditions and the conditions set forth in Section 7 have been satisfied or, upon funding, would be satisfied or waived, draw an amount of a breach thereof by the financing provider(s) thereunderDebt Financing which, together with the cash on hand of Parent and Purchaser and the net proceeds of any offering of debt securities, is sufficient to enable Parent and Purchaser to fund the cash payments required to consummate the Transactions). None of Parent or Purchaser shall (and Parent shall notcause Borrower not to), without the Company’s prior written consent, permit any amendmentamend, supplementmodify, replacement replace, terminate or modification agree to be made to, or any waiver of any provision under, under the Debt Commitment Letter if such amendment, supplementmodification, replacement, modification termination or waiver (Ai) reduces the aggregate amount of the Debt Financing to an amount that, together with Parent’s and Purchaser’s cash on hand and the net proceeds from of any offering of debt securities, would be less than an amount that would be required to fund the cash payments required to consummate the Transactions or (ii) changes the conditions to obtaining the Debt Financing or (B) imposes adds new or additional conditions precedent to the initial funding or otherwise expands any of the conditions to the receipt of obtaining the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that if such change would reasonably be expected to (xA) materially 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) Financing on the Closing Date, ) materially less likely to occur or (yC) materially adversely affect impact the ability of Parent the Borrower to enforce its rights against the other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (thereto; provided, that however, that, for the avoidance of doubt, Parent may cause the Borrower to (1) amend or replace the Debt Commitment Letter or the Debt Fee Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents agents, managers 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 to clause of the Agreement Date and (ii2) below, (ii) implement or exercise any reference “flex” provisions provided in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Fee Letter which is not superseded by a New Debt Commitment Letter at the time as 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.on the
Appears in 1 contract
Sources: Merger Agreement (Viela Bio, Inc.)
Financing. (a) Subject The Parent Representative has delivered 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) Majority Member true, correct and complete copies of executed equity commitment letters dated as of the 1440241.11A-WASSR01A - MSW Effective Date (the “Equity Commitment Letters”) pursuant to which certain equity investors identified therein have committed, upon the terms and subject to the conditions thereof, to invest funds in Parents as set forth therein (the “Equity Financing”). The Equity Commitment Letters provide that the Company is an express third party beneficiary thereof and the Company is entitled to enforce such Equity Commitment Letters, in each material amendment case, subject to the terms and conditions thereof.
(b) Each of the Equity Commitment Letters is in full force and effect and has not been withdrawn or terminated or otherwise amended, supplemented or modified in any respect, no such amendment, supplement or modification that is or would reasonably be expected to be adverse to the Debt Commitment Letter Company is contemplated and the respective commitments contained therein have not been withdrawn, terminated or rescinded in any respect. There are no other Contracts, agreements, side letters or arrangements to which either Parent or any of their respective Affiliates is a party relating thereto will be promptly provided to the CompanyEquity Financing, other than as expressly set forth in the Equity Commitment Letters. If commitments Each of the Equity Commitment Letters, in the form so delivered, is a legal, valid and binding obligation of the applicable Parent Affiliate party thereto, except as such enforceability may be subject to the Enforceability Exceptions. No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of either Parent or any Affiliate of either Parent that is party thereto under any term, or a failure of any condition, of the Debt Equity Commitment Letter Letters, or otherwise result in any portion of the Equity Financing contemplated thereby to be unavailable or delayed. There are no conditions precedent relating to the funding of the full amount of the Equity Financing, other than as set forth in the Equity Commitment Letters. None of Parents or Merger Subs have been reduced reason to zero believe that any of them could be unable to satisfy on a timely basis any term or condition of the Equity Commitment Letters required to be satisfied by them.
(c) The net proceeds of the Equity Financing, when funded in accordance with the Equity Commitment Letters, will be, in the aggregate, as of the Closing Date, sufficient to enable Parents to consummate the Transactions as contemplated hereby and pay any fees and expenses incurred by Parents and Merger Subs in connection with the preceding sentence, the obligations Transactions. None 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 Parents 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 effectMerger Subs has incurred, 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 will 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 incur as of the Closing Date, Parent shall provide all funds required to effect the repayment any obligation, commitment, restriction or Liability of all indebtedness under the Company Credit Agreement any kind, which would impair or adversely affect, other than in full in accordance with the Company Credit Agreementa de minimis manner, 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 either Parent’s or any of its Affiliates’ obtaining funds either Merger Sub’s ability to consummate the Merger Transaction and the transactions pay all related transaction expenses as contemplated by this Agreement.
(d) With respect to Parent II and Merger Sub II, (i) this Agreement and the Transactions are commercial rather than public or governmental acts and neither Parent II nor Merger Sub II is entitled to claim immunity from legal proceedings with respect 1440241.11A-WASSR01A - MSW to itself or any of its assets on the grounds of sovereignty or otherwise under any applicable laws or in any jurisdiction where an action may be brought for the enforcement of any of the obligations arising under or relating to this Agreement and (ii) to the extent that either Parent II or Merger Sub II or any of its respective assets has or hereafter may acquire any right to immunity from set-off, legal proceedings, attachment prior to judgment, other attachment or execution of judgment on the grounds of sovereignty or otherwise, each of Parent II and Merger Sub II hereby irrevocably waives such rights to immunity in respect of its obligations arising under or relating to this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Aes Corp)
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 shall obtain the Equity Financing contemplated by the Equity Commitment Letters upon satisfaction or waiver of the conditions to the terms and conditions Closing set forth in Section 9.1 [(Conditions to the Obligations of this Agreementthe Company, 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 Merger Sub)] and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant Section 9.2 [(Conditions to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under Obligations of the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunderCompany)]. Parent 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 Equity Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces Letters without the aggregate amount prior written consent of the cash proceeds from Company. Parent acknowledges and agrees that its obligations to consummate the Debt Financing transactions contemplated by this Agreement are not conditioned or (B) imposes new or additional conditions to the initial funding in any way contingent upon or otherwise expands any of the conditions to the subject to, receipt of the Debt FinancingEquity Financing or other financing or the availability, grant, provision or otherwise expands, amends extension of any Equity Financing 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 financing 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, Affiliates. Neither 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 notnor Merger Sub shall, nor shall it they permit any of its their Affiliates to, without the prior written consent of the Company, take or fail to take any action or enter into any transaction that would could reasonably be expected to materially impair, delay or prevent the consummation of the Equity Financing contemplated by the Equity Commitment Letters.
(b) Prior to the earlier of the Closing or termination of this Agreement in accordance with Section 10.1 [(Termination)], the Company agrees to use commercially reasonable efforts to provide such cooperation as may be reasonably requested by Parent, at Parent’s expense and solely as an accommodation to Parent, in connection with the arrangement of any financing to be consummated with respect to the transactions contemplated by this Agreement; provided that (i) such requested cooperation does not (A) unreasonable interfere with the ongoing operations of the Company, the MIC Hawaii Companies and their respective Affiliates, (B) cause any representation, warranty covenant or agreement in this Agreement to be breached; or (C) cause any closing condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement or any Contract to which MIC or any of the MIC Subsidiaries or the Company or any of the MIC Hawaii Companies is a party; and, provided, further, that the effect of any such breach shall be excluded when determining if the conditions set forth in Section 9.1 [(Conditions to the Obligations of the Company, Parent and Merger Sub)] and Section 9.2 [(Conditions to the Obligations of the Company)] are satisfied, (ii) this Section 8.17(b) does not expand any of Parent’s rights under Section 8.1 [(Access to Information Concerning Properties and Records)] and (iii) none of the Company, the MIC Hawaii Companies and their respective Affiliates shall have any liability or obligation under any agreement or document related to such financing or otherwise be required to incur any liability or obligation in connection with such financing.
(c) For the avoidance of doubt, none of MIC, the MIC Subsidiaries, the Company, any MIC Hawaii Companies or their respective Affiliates shall be required to provide, and Parent shall be solely responsible for, (1) the preparation of pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financial information or any financial statements or financial information other than the consolidated financial statements contained in the MIC Reports or Company Reports, (2) any description of all or any portion component of the Debt Financingfinancing, including any such description to be included in any liquidity or capital resources disclosure or any “description of notes”, (3) projections, risk factors or other forward-looking statements relating to all or any component of any financing, (4) subsidiary financial statements or any other information of the type required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X promulgated under the Exchange Act or (5) Compensation Disclosure and Analysis required by Item 402(b) of Regulation S-K promulgated under the Exchange Act. The MIC Board, the Company Board and the directors, managers and general partners of the MIC Subsidiaries and the MIC Hawaii Companies and any other Affiliates of the Company or MIC shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which any financing is obtained. None of the Company, any MIC Hawaii Companies or their respective Affiliates shall be required to execute prior to the Closing 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, and in the event any such Person does agree to execute any such document, Parent agrees that the execution of any documents in connection with the financing shall be subject to the consummation of the transactions contemplated hereby at the Closing and such documents will not take effect until the Closing occurs and will not encumber the assets of the Company or any MIC Hawaii Company prior to the Closing. Except as expressly provided above, none of the Company, any MIC Hawaii Companies or their respective Affiliates shall be required to take any corporate, limited liability company or limited partnership actions prior to the Closing to permit the consummation of the financing. In no event shall the Company or MIC be in breach of this Agreement because of the failure to deliver any financial or other information or for the failure to obtain any comfort with respect to, or review of, any financial or other information by its accountants.
(d) In no event shall MIC, any MIC Subsidiary, the Company or any MIC Hawaii Company be required to (i) pay any commitment or similar fee or incur any liability (including due to any act or omission by MIC, any MIC Subsidiary, the Company or any MIC Hawaii Company or any of their respective Representatives) or expense in connection with assisting Parent shall have in arranging the right financing or as a result of any information provided by MIC, any MIC Subsidiary, the Company or any MIC Hawaii Company or any of their respective Affiliates or their respective Representatives in connection therewith, (ii) take any action that would result in a violation of applicable Law or subject it to substitute the net cash proceeds received by Parent after the date hereof and actual or potential liability prior to the Closing from consummated offerings occurring, (iii) have any liability or any obligation under any definitive financing document or any related document or other incurrences agreement or document related to the financing prior to the Closing occurring, or (iv) disclose or provide any information the disclosure of debt which in the reasonable judgment of MIC or any of the MIC Subsidiaries (including notesor, following completion of the Reorganization, the Company or any of the MIC Hawaii Companies), is restricted by applicable Law or order, or is subject to attorney-client privilege. Notwithstanding anything to the contrary herein, any breach by MIC, any MIC Subsidiary, the Company or any MIC Hawaii Company of their obligations under this Section 8.17 shall not constitute a breach of this Agreement or a breach for purposes of Article IX or a breach of any condition precedent set forth in Article VIII.
(e) by Parent shall be responsible for all or fees and expenses related to 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 financing to be paid consummated in connection with the transactions contemplated by this Agreement. Accordingly, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent shall promptly notifies reimburse MIC and the Company of for all reasonable and documented out-of-pocket costs incurred by MIC and the MIC Subsidiaries and the Company and the Company Subsidiaries in connection with such substitution cooperation. Parent shall indemnify and reduction and (z) truehold harmless MIC, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to MIC Subsidiaries, the Company. If commitments under , the Debt Commitment Letter have been reduced to zero Company Subsidiaries and their respective Affiliates and Representatives from and against any and all Liabilities, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the preceding sentence, the obligations arrangement of any financing or providing any 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 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 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, (i) Parent shall take all actions, and do (or cause to be done) all things, necessary, proper or advisable to obtain the Equity Funds, and (ii) 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 and the terms thereof Debt Fee Letter (including the flex provisions), and shall not consent to any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under assignment of the commitments set forth in the Debt Commitment Letter in the event of to which it has a breach thereof by the financing provider(s) thereunder. Parent shall not, consent right without the CompanyPartnership’s prior written consent, consent or permit any amendment, supplement, replacement amendment or modification to be made to, or consent to any waiver of any provision or remedy under, the Debt Commitment Letter or the Debt Fee Letter, if such amendment, supplementmodification, replacement, modification consent or waiver would (A) reduces reduce the aggregate amount of the cash proceeds Debt Financing (including by changing the amount of fees to be paid or original issue discount) from that contemplated in the Debt Financing Commitment Letter to an amount that, together with Equity Funds received by Parent, would not enable Parent to meets its payment obligations under this Agreement, including under Article II, or (B) 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 reasonably be expected to (1) delay or prevent the Closing, (2) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur or (3) adversely impact the ability of Parent to enforce its rights against the Debt Financing Sources under the Debt Commitment Letter. For purposes of clarification, the foregoing shall not prohibit Parent from amending the Debt Commitment Letter and the Debt Fee Letter to add additional lender(s) (and Affiliates of such additional lender(s)) as a party thereto so long as the addition of such lenders would not 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 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 Financing Sources under 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 Sources” being deemed to include such additional lender(s)). Any reference in this Agreement to (a) “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as amended or modified pursuant to clause in compliance with this Section 6.16 and (iib) 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 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)6.16.
(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 Parent, Merger Sub or the Company, 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.
(b) Parent shall. For purposes of this Section 5.5, and 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 becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter, (A) Parent and Merger Sub shall promptly notify the 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 but no later than the final day of the Marketing Period. Parent and Merger Sub acknowledge and agree that the obtaining of the Financing, or any alternative financing, is not a condition to 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 (1) to amend or waive any of the terms or conditions hereof or (2) to consummate the Closing any earlier than the final day of the Marketing Period. 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 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 prior to the final day of the Marketing Period; 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.
(b) The Company shall provide to Parent and Merger Sub, and shall cause its Subsidiaries to provide, at Parent’s sole expense, and shall use 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 Available Financing (all such documents and materials, collectively, the “Offering Documents”), (ii) preparing and furnishing Parent and Merger Sub and their financing sources as promptly as practicable with all Required Information 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 or Merger Sub to assist in preparation of the Offering Documents (including execution of customary authorization and management representation letters and certificates), (iii) participating in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Available Financing, including direct contact between senior management and Representatives of the Company and its Subsidiaries and Parent’s and Merger Sub’s financing sources and potential lenders and investors in the Available Financing, and obtaining any corporate, credit and ratings from rating agencies contemplated by the Debt Commitment Letter, (iv) obtaining accountant’s comfort letters and consents from the Company’s independent auditors, (v) assisting in the preparation of, and executing and delivering, definitive financing documents, including guarantee and collateral documents, hedging agreements and other certificates and documents as may be requested by Parent or Merger Sub (including a certificate of the chief financial officer of the Company and its Subsidiaries with respect to solvency matters), (vi) facilitating the pledging of collateral for the Available Financing, including taking commercially reasonable actions necessary to permit the financing sources of the Available Financing to evaluate the Company’s and its Subsidiaries’ real property and current assets, cash management and accounting systems, policies and procedures 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 Available Financing, (vii) using commercially reasonable efforts to ensure that the financing sources benefit from the existing lending relationships of the Company and its Subsidiaries, (viii) using commercially reasonable efforts to obtain such consents, approvals, authorizations and instruments which may be reasonably requested by Parent or Merger Sub in connection with the Available Financing and collateral arrangements, including customary payoff letters, lien releases, instruments of termination or discharge, legal opinions, surveys, title insurance and landlord consents, waivers and access agreements and (ix) facilitating the consummation of the Available Financing, including cooperating with Parent and Merger Sub to satisfy the conditions precedent to the Available 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 or Merger Sub to permit the consummation of the Available 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 of its Subsidiaries under any certificate, document or instrument (other than the authorization and representation letters and certificates referred to above) shall be effective until the Effective Time and, none of the Company or any of its Subsidiaries shall be required to pay any commitment or other similar fee or incur any other liability in connection with the Available Financing prior to the Effective Time. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Available Financing; provided, that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries. 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) 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 the Financing and any information used in connection therewith, except with respect to any information prepared or provided by the Company 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 Confidentiality Agreement, except that (i) 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 the potential sources of capital, ratings agencies and prospective lenders and investors entering into customary confidentiality undertakings with respect to such information (including through a notice and undertaking in a form customarily used in confidential information memoranda for senior credit facilities) and (ii) upon reasonable notice from Parent, the Company agrees to file with the SEC a Form 8-K or Form FD, in form and substance reasonably satisfactory to the Company, containing any material non-public information with respect to the Company or its subsidiaries contained in any offering memorandum to be used in connection with the offering of high yield debt securities contemplated by the Debt Commitment Letter.
(c) On each date on which the Company files with the SEC its Quarterly Report on Form 10-Q (a “10-Q”) or Annual Report on Form 10-K (a “10-K”) (or, if earlier, the date on which such 10-Q or 10-K, as applicable, was required to be filed), the Company shall deliver to Parent and Merger Sub a certificate executed by the Chief Financial Officer of the Company (the “Leverage Ratio Certificate”) setting forth the Closing Adjusted Leverage Ratio (as defined in Exhibit B hereto) calculated as of such date, together with supporting calculations in reasonable detail, which calculation, with respect to the Closing Consolidated Total Debt (as defined in Exhibit B hereto), shall give pro forma effect to the borrowing to take place under 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 shall use its, and shall cause its controlled Affiliates (as applicable) 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 necessary, proper or advisable or proper to arrange consummate and obtain the Debt Financing on the terms and subject only to the conditions described set forth in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Letter, including using its commercially reasonable best efforts to seek (i) maintain in effect and comply with the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions set forth in the Commitment Letter, (iii) satisfy on a timely basis all conditions applicable to Parent in the Commitment Letter at or prior to the Closing Date that are in its control, (iv) upon the satisfaction or waiver of the conditions to Parent’s obligations to consummate the Merger, draw the Financing in the amount required to consummate the transactions contemplated by this Agreement on the Closing Date and (v) in the event of a failure to fund by the Financing Sources in accordance with the Commitment Letter, enforce its rights under the Debt Commitment Letter in and the event of a breach thereof by the financing provider(sdefinitive agreements (if any) thereunderwith respect thereto. Parent shall not, without the Company’s prior written consentconsent of the Company, agree to or permit any termination of or amendment, supplement, replacement supplement or modification to be made to, or grant any waiver of any provision under, the Debt Commitment Letter if such termination, amendment, supplement, replacement, modification or waiver would (A) reduces reduce the aggregate amount of any portion of the cash proceeds from the Debt Financing or Financing, (B) imposes impose new or additional conditions precedent to the initial funding availability of the Financing or otherwise expands expand, amend or modify 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 (x) prevent or impede or 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 impact the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter Letter, or (D) delay or prevent the definitive agreements with respect thereto (provided, Closing or make the funding of the Financing less likely to occur; provided that Parent may may, without the consent of the Company, amend or otherwise 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 Commitment Letter on the date of this Agreement, as such action would not reasonably be expected to delay or prevent expressly contemplated by the Closing)Commitment Letter. Parent shall promptly deliver to the Company true, true and complete and correct copies of any such amendment, modification modification, supplement, consent or replacementwaiver to or under any Commitment Letter or the definitive agreements relating to the Financing promptly upon execution 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 reasonably prompt 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 generality of the foregoing, Parent agrees to notify shall give the Company promptlyprompt written notice of (i) any breach, default, termination, cancellation or repudiation by any party to the Commitment Letter, (ii) the receipt by Parent of any written notice or other written communication from any Financing Source with respect to any (A) breach, default, termination, cancellation or repudiation by any party to the Commitment Letter or (B) dispute or disagreement between Parent and in any event within two (2) Business Days, if at any time prior Financing Source related to the Financing that could reasonably be expected to delay or otherwise adversely impact the ability of Parent to obtain all or part of the Financing that is contemplated as of the date hereof to be funded on the Closing Date (igiving effect to market flex provisions), and (iii) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware occurrence of any breach an event 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 development that could reasonably be expected to adversely affect the availability ability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses Parent to provide, obtain all or any portion of the Debt Financing that is contemplated as of the date hereof to be funded on the Closing Date (giving effect to market flex provisions) on the terms and in the manner contemplated by the Debt Commitment Letter on the terms set forth thereinLetter. As soon as reasonably practicable, Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances circumstance referred to in the immediately preceding sentence. If any portion of the Financing becomes unavailable on the terms and conditions (including any applicable “market flex” provisions) contemplated by the Commitment Letter, Parent shall promptly notify the Company in writing and Parent shall use reasonable best efforts to arrange and obtain, reasonably promptly given the anticipated timing of Closing, in replacement thereof alternative financing (the “Alternative Financing”) in an amount sufficient to fund the Required Amount with terms and conditions (including “market flex” provisions) not materially less favorable to Parent (or its respective Affiliates) than the terms and conditions set forth in the Commitment Letter as in effect on the date of this Agreement (as it may have been amended or otherwise modified to the extent permitted by this Section 6.13(c7.10). Parent shall notdeliver to the Company true and complete copies of the financing letters for any such Alternative Financing (including fee letters that shall have fee or related economic information redacted pursuant to the terms thereof) pursuant to which any such alternative source shall have committed to provide all or any portion of the Alternative Financing.
(c) Prior to the Closing Date, nor the Company shall it permit use its reasonable best efforts to provide, and shall cause its Subsidiaries to use their reasonable best efforts to provide, and shall use reasonable best efforts to cause its and their respective officers, employees and advisors to provide, to Parent, at Parent’s sole cost and expense, such reasonable cooperation as is customary and reasonably requested by Parent in connection with the arrangement of the Financing, including using reasonable best efforts to:
(i) furnish Parent with the Required Information;
(ii) upon reasonable advance notice, cause senior management of the Company to participate in a reasonable number of lender meetings, diligence sessions and sessions with rating agencies in connection with the Financing, all at reasonable times and intervals;
(iii) assist Parent with the preparation by Parent and the Financing Sources of materials for rating agency presentations, bank information memoranda, lender presentations, syndication memoranda and similar marketing or offering materials, memoranda or documents, in each case to the extent, and solely to the extent, such materials relate to information concerning the Company and the Company Subsidiaries and, if required, assist Parent in obtaining ratings in connection with the Financing;
(iv) execute and deliver as of (but not prior to) the Closing any pledge and security documents, other definitive financing documents, or other certificates or documents as may be reasonably requested by Parent (provided, that (A) none of the documents or certificates shall be executed or delivered except in connection with the Closing, (B) the effectiveness thereof shall be conditioned upon, or become operative upon, the occurrence of the Closing and (C) no liability shall be imposed on the Company or any of its Affiliates toSubsidiaries or any of their respective officers or employees involved prior to the Closing Date) and otherwise reasonably facilitate the pledging of collateral;
(v) provide, without at least three (3) Business Days prior to the prior written consent Closing, all documentation and other information about the Company and its Subsidiaries as is reasonably required under applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act, in each case to the extent requested at least ten (10) Business Days in advance of the Closing;
(vi) request the Payoff Letter from the applicable existing lenders (or agent in respect thereof) of the Company or its Subsidiaries;
(vii) subject to the proviso in Section 7.10(c)(ix), cause the Company’s accountants to provide, consistent with customary practice, reasonable assistance to Parent in connection with Parent’s preparation of pro forma financial statements and information;
(viii) as promptly as reasonably practicable, inform Parent if the Company or its Subsidiaries shall have Knowledge (x) that any restatement of the financial statements of ABILITY Network Inc. comprising a portion of the Required Information must be made (or the auditors of ABILITY Network Inc. have recommended such a restatement be made) in order for such financial statements to comply with GAAP or (y) that any of the Required Information is no longer Compliant; and
(ix) solely with respect to financial information and data derived from the historical books and records of the Company and its Subsidiaries, assist Parent with the preparation of pro forma financial information and pro forma financial statements necessary or reasonably required by Parent or the Financing Sources, it being agreed that the Company will not be required to provide any information or assistance relating to (A) 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 Financing or (B) any financial information related to Parent or any of its Subsidiaries or any adjustments that are not directly related to the acquisition of the Company by Parent; provided, however, that (I) in no event shall the Company, the Company’s Subsidiaries or the Company’s accountants be required to provide, prepare or assist with the preparation of, any purchase accounting adjustments, valuations or purchase price allocations and (II) in no event shall the Company, the Company’s Subsidiaries or the Company’s accountants be required to assist in causing such pro forma financial information and pro forma financial statements to comply with Regulation S-X.
(d) Notwithstanding anything to the contrary herein, none of such requested cooperation provided in accordance with this Section 7.10 shall unreasonably interfere with the normal business or operations of the Company and its Subsidiaries and in no event shall the Company or any of its Subsidiaries be required to (i) bear any expense, pay any commitment or other fee, enter into any definitive agreement, incur any other liability, make any other payment, be an issuer or other obligor with respect to the Financing or agree to provide any indemnity in connection with the Financing or any of the foregoing in each case prior to the Effective Time or (ii) take any action to cause any condition to Closing set forth in this Agreement to fail to be satisfied or enter into otherwise cause any transaction breach of this Agreement that would provide Parent the right to terminate this Agreement or seek indemnity under the terms hereof. In addition, nothing in this Section 7.10 shall require (a) the Company or any of its Subsidiaries to provide access to or disclose information when the Company determines that such access or disclosure would reasonably be expected to jeopardize the attorney client privilege, (b) any action that would conflict with or violate the Company Organizational Documents or any law or result in, prior to the Effective Time, the contravention of, or that would reasonably be expected to materially impairresult in, delay prior to the Effective Time, a violation or prevent consummation breach of, or default under, any Material Contract, (c) any employee, officer or director of all the Company or any portion of its Subsidiaries incurring any personal liability (as opposed to liability in his or her capacity as an officer of such Person) with respect to any matters related to the Debt Financing.
, (d) Parent the Company, any of its Subsidiaries or any of their respective boards of directors (or equivalent bodies) to approve or authorize the Financing or any documentation related thereto prior to the Effective Time or (e) the Company, any of its Subsidiaries or their counsel to provide any legal opinion in connection with the Financing. For the avoidance of doubt, none of the Company or any of its Subsidiaries or their respective officers, directors or employees shall have be required to execute or enter into or perform any agreement with respect to the right to substitute Financing contemplated by the net cash proceeds received by Parent after Commitment Letter that is not contingent upon the date hereof and Closing or that would be effective prior to the Closing from consummated offerings and no directors of the Company or other incurrences any of debt its Subsidiaries that will not be continuing directors, acting in such capacity, shall be required to execute or enter into or perform any agreement with respect to the Financing. Parent shall, with respect to the arrangement of the Financing, (I) promptly reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including notes(A) reasonable attorneys’ fees and (B) expenses of the Company’s accounting firms 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 its Subsidiaries 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 their respective Representatives in connection with the transactions contemplated by this AgreementFinancing, (x) including 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 and Representatives contemplated by Section 6.14 shall no longer be 7.10(c)) and (II) indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses, claims, damages, liabilities, costs, expenses, fines, penalties and amounts paid in effect. Furthersettlement (including all interest, Parent shall have the right to substitute commitments assessments and other charges paid or payable in connection with or in respect of other financings for all any thereof) suffered or incurred by 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”). True, correct and complete copies including the performance 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 oftheir respective obligations under, or the aggregate amount taking of proceeds available underor refraining from any action in accordance with, the Debt Financing contained therein redactedthis Section 7.10), 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 case other than to the extent then any of the foregoing was suffered or incurred as a result of the gross negligence or willful misconduct of the Company or any of its Subsidiaries or, in effecteach case, their respective Affiliates 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 effectRepresentatives.
(e) On the Closing DateThe Company shall use its reasonable best efforts to, and shall cause its Subsidiaries to use their reasonable best efforts to, periodically update any Required Information provided to 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)as may be necessary so that such Required Information is Compliant.
(f) Notwithstanding anything For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 7.10 represent the sole obligation of the Company, its Subsidiaries and Affiliates and their respective Representatives with respect to cooperation in connection with the arrangement of the Financing and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations.
(g) The Company hereby consents, on behalf of itself and each of the Acquired Companies, to the contrary contained hereinuse of the Acquired Companies’ logos solely in connection with the Financing; provided, Parentthat Parent shall ensure that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Acquired Companies or the Acquired Companies’ reputation or goodwill and will comply with the Company’s obligations hereunder are not subject usage requirements to a condition regarding Parent’s or any the extent made available to Parent prior to the date of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
(h) Parent acknowledges and agrees that the obtaining of the Financing, or any Alternative Financing, is not a condition to Closing.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Inovalon Holdings, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its, and shall cause its controlled Affiliates 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 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 subject only to the terms thereof conditions (including any the market “market flex” provisions) set forth in the Commitment Papers contemporaneously with the Closing, 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)Papers, (Bii) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter Financing (the “Debt Financing Definitive Agreements”) on consistent with the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, Papers 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 the Debt Financing at or prior to the Closing, (D) to Closing Date all conditions in the Commitment Papers and the 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 Papers or the Definitive Agreements (other than the consummation of the Merger and other than those that by their nature are to be satisfied at the Closing) have been or, upon funding of the Debt Financing will be, satisfiedsatisfied or waived, Parent and Sub shall use their its reasonable best efforts to in all material respects enforce their its rights underunder the Commitment Papers, and including using reasonable best efforts to cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing Lenders to comply with their respective obligations under the Debt Commitment Letter and definitive financing agreements and thereunder, including to fund on or before the Effective Time the Debt Financing. Parent shall not, without the prior written consent of the Company, permit any termination of or amendment, supplement or modification to be made to, or grant any waiver of any provision under, the Commitment Papers if such termination, amendment, supplement, modification or waiver would (A) reduce the aggregate amount of the Financing to an amount that, when combined with cash of the Parent, would not be sufficient to consummate the Refinancing, (B) impose new or additional conditions precedent to the availability of the Financing or otherwise expand, amend or modify any of the conditions precedent to the Financing in a manner that would reasonably be expected to prevent or materially impede or delay the funding of the Financing, (C) adversely impact the ability of Parent to enforce its rights against the other parties to the Commitment Papers or (D) would otherwise reasonably be expected to prevent or materially impede or delay the funding of the Financing. Parent shall promptly deliver to the Company true and complete copies of any amendment, modification, supplement, consent or waiver to or under any Commitment Papers promptly upon execution thereof.
(b) Parent shall keep the Company informed on a current reasonably prompt 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 generality of the foregoing, 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 written notice of (i) any actual or threatened breach, default, termination, cancellation or repudiation by any party to the Debt Commitment Letter is terminated for Papers and the receipt of any reasonwritten notice or other written communication from any Financing Source with respect to any breach, default, termination, cancellation or repudiation by any party to the Commitment Papers, or (ii) Parent becomes aware the occurrence of any breach an event 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 development that could reasonably be expected to adversely affect the availability ability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses Parent to provide, obtain all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth thereinClosing Date to the extent necessary to fund the Refinancing. As soon as reasonably practicable after the Company delivers to Parent a written request, Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances circumstance referred to in the immediately preceding sentence. If the Financing becomes unavailable on the terms and conditions (including any applicable market “flex” provisions) contemplated by the Commitment Papers (other than solely as a result of Company’s material breach of any covenant in this Section 6.13(c5.20). , Parent shall not(i) use its reasonable best efforts to arrange and obtain, nor shall it permit any in replacement thereof alternative financing (the “Alternative Financing”) in an amount, when combined with cash on hand of its Affiliates toParent, without sufficient to consummate 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 Refinancing with terms and prior to the Closing from consummated offerings or other incurrences of debt conditions (including notesmarket “flex” provisions) by not less favorable to Parent for all (or any portion of its Affiliates) than the Debt Financing by reducing commitments under terms and conditions set forth in the Debt Commitment Letter; provided that Papers and (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 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 notify the Company of such substitution unavailability and reduction and (z) truethe reason therefor. Upon any amendment, correct and complete copies of each material amendment supplement, modification, waiver 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 replacement 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 Papers in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
terms hereof (f) Notwithstanding anything to including upon the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s execution of any commitment letter or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.fee
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, 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, 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 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, 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.
effects described in clauses (bi) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts through (Aiii) 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 Commitments in accordance with this Section 7.12(a), the Company Credit AgreementBuyer shall provide, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained hereinwithin two days, 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.an executed copy
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 necessary 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 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 the Debt Commitment Letter; provided, that Parent and Merger Sub may amend or modify the Debt Commitment Letter if such amendment, supplement, replacement, modification and/or elect to replace all or waiver (A) reduces the aggregate amount any portion of the cash proceeds from the Debt Financing with alternative debt and/or equity financing (the “Alternative Financing”), in each case so long as (i) the aggregate proceeds of the Debt Financing (as amended or modified) and/or any Alternative Financing will be sufficient for Merger Sub and the Surviving Corporation to pay (B1) imposes the aggregate Merger Consideration and (2) any other amounts required to be paid in connection with the consummation of the Transactions upon the terms and subject to the conditions contemplated hereby and all related fees and expenses associated therewith, and (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 any other provision of the Debt Commitment Letter existing conditions, in a manner that each case would not or would not reasonably be expected to (x1) 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 (y2) materially 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)Letter. Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) . In addition, Parent shall, and Merger Sub shall cause its Affiliates and Representatives to, use its their respective reasonable best efforts to (A) subject to its rights under the first sentence of this Section 7.07(a), maintain in full force and 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 the terms and subject to the 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 in the Debt Financing at the Closing set forth therein Commitment Letter that are within its control or subject to and otherwise comply with 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 Closingobligations thereunder, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective TimeTime and (E) enforce its rights under the Debt Commitment Letter. In For purposes of this Section 7.07, references to “Debt Financing” shall include the event that all conditions precedent expressly set forth in financing contemplated by the Debt Commitment Letter have been oras permitted to be replaced, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights underamended or supplemented by this Section 7.07(a), and cause the Financing Sources, lenders and the other persons providing or committing references to provide the Debt Financing to comply with their obligations under the “Debt Commitment Letter and definitive financing agreements and Letter” shall include such documents as permitted to fund on be replaced, amended 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 7.07(a).
(cb) Without limiting the foregoinggenerality of Section 7.07(a), 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 breach or default (Aor 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 Commitment Letter, which would be reasonably likely to result in any condition of the Debt Commitment Letter not to be satisfied to the effect that the Debt Financing Source shall cease to be available or the termination of the Debt Commitment Letter, of which Parent or Merger Sub becomes aware; (ii) of the receipt of any written notice or other written communication from any party to the Debt Commitment Letter with respect to any alleged or threatened breach, default, termination or repudiation by any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or which could result in any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability condition of the Debt Commitment Letter not to be satisfied to the effect that the Debt Financing shall cease to be available or the termination of the Debt Commitment Letter; and (iii) a counterparty indicates in writing if Parent or orally 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 Letter. In 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 event 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 subject to the conditions contemplated in a breach or default under, or violation of, the Debt Commitment Letter, (w1) Parent shall promptly notify the Company, and (2) Parent shall use its reasonable best efforts to arrange to obtain the Alternative Financing in an amount sufficient to consummate the Transactions, including the Merger, as promptly as possible.
(c) The Company agrees to use reasonable best efforts to provide, and shall cause each Company Subsidiary and each of their respective Representatives to use reasonable best efforts to provide, to Parent and Merger Sub all reasonable cooperation as may be requested by Parent or its Representatives that is customary in connection with the Debt Financing and any Alternative Financing, including, without limitation, (i) participating in a reasonable number of meetings, presentations, due diligence sessions, road shows, sessions with rating agencies and other meetings, including arranging for reasonable direct contact between the Representatives of the Company with the Representatives of Parent and Merger Sub and their Debt Financing and/or Alternative Financing sources, (ii) assisting in the preparation of offering memoranda, private placement memoranda, bank information memoranda (including a public side version which does not contain non-publicly available information), prospectuses, rating agency presentations and similar documents reasonably requested by Parent and Merger Sub or their Representatives in connection with the Debt Financing and/or Alternative Financing, (iii) 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 pro forma financial statements, providing consent to Parent to use audit reports relating to the Company and the Company Subsidiaries and providing any necessary “comfort letters,” (iv) furnishing Parent and Merger Sub and their Debt Financing and/or Alternative Financing sources with financial and other pertinent information regarding the Company and the Company Subsidiaries as may be reasonably requested by Parent, Merger Sub and their Debt Financing and/or Alternative Financing sources, including, without limitation, all financial statements and financial and non-financial information regarding the Company and the Company Subsidiaries of the type and form customary for the placement, arrangement and/or syndication of loans or distribution of debt contemplated by (or otherwise required as a condition to funding under) the aggregate amount Debt Financing, (v) assisting in the negotiation of, and executing and delivery of, the definitive financing documents, including pledge and security documents, certificates, management representation letters or other documents, to the extent reasonably requested by Parent and otherwise reasonably facilitating the pledging of collateral, (vi) 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 other Representatives of the Company and each of the Company Subsidiaries, (vii) taking all reasonable actions necessary to (1) permit the prospective lenders involved in the 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 (2) establish bank and other accounts and blocked account Contracts and lock box arrangements in connection with the foregoing, and (viii) furnishing Parent, Merger Sub and their Representatives with documentation as may be reasonably required with respect to the Debt Financing and/or any Alternative Financing under applicable “know your customer” and anti-money laundering rules and regulations; provided, that (A) none of the Company or any Company Subsidiary shall be required to become subject to any obligations or liabilities with respect to any definitive Financing documents, including pledge and security documents prior to the Closing, and none of the Company or any Company Subsidiary shall be required to take any action that is not contingent upon the Closing or that would be effective prior to the Effective Time, (B) nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business and operations of the Company or any Company Subsidiary and (C) none of the Company or any Company Subsidiary shall be required to issue any offering or information document prior to the Effective Time. None of the Company or any Company Subsidiary shall be required to take any action that would subject it to actual or potential liability that will not be indemnified by Parent hereunder, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment (other than reasonable out-of-pocket costs) 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 out of pocket costs and expenses incurred by the Company or any Company Subsidiary in connection with its cooperation as contemplated by this Section 7.07 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 committed under the Debt Commitment Letter following such reduction, together with other cash or any Alternative Financing and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid any information utilized in connection therewith except with the transactions contemplated respect to any information provided 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 any Company Subsidiary or 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 willful misconduct 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 effectSubsidiary.
(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 commercially reasonable best efforts to take, or cause Merger Sub to be takentake, all actions and to do, or cause Merger Sub to be donedo, all things reasonably necessary, proper or advisable or proper to arrange arrange, and obtain consummate in a timely manner, the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant Financing Commitments (provided that, subject 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 provisions of a breach thereof by the financing provider(s) thereunder. this Section 6.14(a), 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 Commitments to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Financing Commitments as of the date hereof, or otherwise so long as such action replacement or amendment would not reasonably be expected adversely impact in any material respect the ability of Parent or Merger Sub to delay or prevent consummate the Closingtransactions contemplated hereby). Parent shall promptly deliver , including using commercially reasonable efforts to the Company true, complete and correct copies of any such amendment, modification or replacement.
(bi) 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 Financing Commitments, subject to the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)foregoing replacement and amendment rights, (Bii) satisfy on a timely basis all conditions applicable to negotiate Parent and Merger Sub to obtaining the Financing set forth in the Financing Commitments that are within their control, (iii) 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 Financing Commitments or on other terms 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 Mergertransactions contemplated hereby, 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 and (iv) consummate the Debt Financing at or prior to the ClosingClosing Date, but in no event later than the Outside Date (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 including using commercially reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and other Persons providing the other persons providing or committing Financing 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(cfinancing). Parent shall not, nor not and shall it permit any of its Affiliates cause Merger Sub not to, without the prior written consent of the Company, take amend, modify or supplement (including in the definitive documents) (x) any action of the conditions or enter into contingencies to funding contained in the Financing Commitments, or (y) any transaction that would other provision of the Financing Commitments, in either case to the extent such amendment, modification or supplement could reasonably be expected to have the effect of materially impair, delay adversely affecting the ability of Parent or prevent consummation of all or Merger Sub to timely consummate the transactions contemplated hereby. In the event that any portion of the Financing contemplated by the Financing Commitments becomes unavailable other than due to the breach of representations and warranties or covenants of the Company or a failure of a condition to be satisfied by the Company after providing notice to the Company and a reasonable opportunity to cure, Parent and Merger Sub shall notify Company and use their commercially reasonable efforts to arrange alternative financing from the same or other sources on terms not less beneficial to Parent and Merger Sub (as determined in the reasonable judgment of Parent), and in an amount sufficient to timely (taking into account the Outside Date) consummate the transactions contemplated hereby on the terms and conditions set forth herein. In the event all conditions applicable to the Financing Commitments (other than in connection with the Debt Financing, the availability or funding of the Equity Financing) have been satisfied, Parent and Merger Sub shall use their commercially reasonable efforts to cause the lenders and the other Persons providing such Financing to fund the Financing required to consummate the Merger on the Closing Date. Parent and Merger Sub shall use their commercially reasonable efforts to satisfy on or before the Closing all requirements of the definitive agreements pursuant to which the Financing will be obtained. Parent and Merger Sub shall give the Company prompt notice of any breach by any party to the Financing Commitments of which either Parent or Merger Sub becomes aware or any termination of any of the Financing Commitments. Parent and Merger Sub shall keep the Company informed on a reasonably current basis in reasonable detail of the status of the Financing.
(db) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior 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 ofClosing, the Debt Commitment LetterCompany shall provide to Parent and Merger Sub, (w) and shall cause its Subsidiaries to, and shall use commercially reasonable efforts to cause the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reductionrespective officers, together with other cash employees and cash equivalents available to Parentadvisors, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreementincluding legal and accounting, (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 shall no longer be Parent and Merger Sub all cooperation reasonably requested by Parent that is necessary, proper or advisable in effect. Further, Parent shall have connection with the right to substitute commitments in respect of other financings for all Financing or any portion alternative financing, including (i) participation in meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, business projections and similar documents required or advisable in connection with the Debt Financing from the same and/or or any alternative financing, including execution and delivery of customary representation letters in connection with bank information memoranda, (iii) as promptly as practical, furnishing Parent and its Debt Financing or alternative financing sources so long with financial and other information regarding the Company and its Subsidiaries as the aggregate amount may be reasonably requested by Parent and its Debt Financing sources or alternative financing sources, including all financial statements, pro forma financial information, financial data, audit reports and other information of the type 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 (or any applicable successor form) under the Securities Act for a public offering or private placements pursuant to Rule 144A under the Securities Act, as applicable (including, to the extent applicable with respect to such financial statements, the report of the Company’s auditors thereon and related management discussion and analysis of financial condition and results of operations) to consummate the offering(s) of debt securities contemplated by the Debt FinancingFinancing Commitments or any alternative financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts or as otherwise required to be paid in connection with the Debt Financing or any alternative financing and the transactions contemplated by this Agreement and all conditions precedent or as otherwise necessary in order to funding receive customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with the offering(s) 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 securities contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) belowFinancing Commitments or any alternative financing, (iiiv) taking all actions reasonably necessary to permit the lenders involved in the Financing or any reference in this Agreement alternative financing to evaluate the “Debt Commitment Letter” shall be deemed to include Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for 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 effectpurposes of establishing collateral arrangements, and (iiiv) taking all corporate actions reasonably necessary to permit the consummation of the Debt Financing or any reference in this Agreement alternative financing and to “fee letter” shall permit the proceeds thereof, together with the cash at the Company and its Subsidiaries, to be deemed to include any fee letter relating made available to the Company on the Closing Date to consummate the Merger. Parent shall, promptly upon request by the Company, reimburse the Company for all out-of-pocket accounting costs incurred by the Company or its Subsidiaries in connection with the performance of the provisions of this Section 6.14(b). The Company hereby consents to the reasonable use of its and its Subsidiaries’ logos in connection with the Debt Commitment Letter Financing or any alternative financing, provided that such logos are used solely in a manner that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter intended to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required nor reasonably likely to effect the repayment of all indebtedness under harm or disparage 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 Subsidiaries or the Merger reputation or goodwill of the Company or any of its Subsidiaries and the transactions contemplated by this Agreementits or their marks.
Appears in 1 contract
Sources: Merger Agreement (Sm&A)
Financing. (a) During the Pre-Closing Period, Parent may execute Subscription Agreements with Equity Investors.
(b) Subject to the terms and conditions of this Agreement, during the Pre-Closing Period, Parent shall use use, and shall cause its Affiliates to use, its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or 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(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 Committed Financing (the “Definitive Debt Financing Agreements”) on consistent with the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (Cii) to satisfy (or, if deemed advisable by Parent, obtain the waiver of) 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 Subscription Agreements, Debt Financing at the Closing set forth therein Commitment Letter, Fee Letter and such Definitive Debt Agreements that are within its control (including payment of all fees and expenses) and comply with its obligations thereunder, (iii) maintain in effect the Subscription Agreements, Debt Commitment Letter and Fee Letter in accordance with their terms and (iv) diligently enforce all of its rights under the Subscription Agreements and Debt Commitment Letter (and any definitive agreements related thereto), provided, however, that Parent shall not be required to bring any enforcement action against any Equity Financing Sources or subject Debt Financing Source to enforce its influence andrights under the applicable Financing. Parent shall not and shall cause its Affiliates not to take or refrain from taking, upon satisfaction directly or indirectly, any action that could reasonably be expected to result in a default under or failure of any of the conditions set forth in contained in, or materially impair, delay or prevent consummation of the Financing contemplated by the Subscription Agreements and the Debt Commitment Letter, to consummate the Letter or in any Definitive Debt Financing at or prior Agreement related to the ClosingCommitted Financing.
(c) Subject to the terms hereof, (D) Parent shall use, and shall cause its Affiliates to use, reasonable best efforts to comply with its obligations obligations, and enforce its rights, under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior Letters. Parent shall give Seller prompt notice of any material breach by any party to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding Letters of which Parent has become aware or any termination (or alleged or purported 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 FinancingLetters. Parent shall keep the Company Seller informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange obtain the Debt Financingproceeds of the Financing and shall not permit any amendment or modification to, andor any waiver of any material 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 Commitment Letters entered into at any time or prior to the Closing Date date hereof if such amendment, modification, waiver or remedy (i) would materially delay the Debt Commitment Letter is terminated for any reasonoccurrence of the Closing, (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) reduces the aggregate amount of the Debt Financing, (iii) adds or imposes new conditions or amends the existing conditions to the drawdown of the Financing committed under or (iv) is adverse to the Debt Commitment Letter following such reductioninterests of Seller, together with other cash and cash equivalents available in each case, in any material respect. Notwithstanding the foregoing, failure to Parent, is sufficient obtain the Cash Equity shall not relieve Parent of its obligation to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement, whether or not the Cash Equity is available.
(xd) In the proceeds event that any portion of such debt offerings or other incurrences have been received by Parent the Committed Financing becomes unavailable on the terms and conditions (including any “flex provisions”) contemplated 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 and the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentenceFee Letter, the obligations regardless of the Company reason therefor, 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 such portion of the Debt Committed Financing from is required to fund the same and/or transactions contemplated by this Agreement on the Closing Date, Parent will (i) as promptly as practicable following the occurrence of such event, use its reasonable best efforts to obtain alternative financing sources so long as (the aggregate “Alternative Financing”) (in an amount of the Debt Financingsufficient, when taken together with other any then-available Financing pursuant to any then-existing Debt Commitment Letter, the then-existing Fee Letter and available cash and cash equivalents available to of 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 pay related fees and expenses earned, due and payable as of the Closing Date) on terms not less favorable in the aggregate to the Buyer Group than those contained in either the Debt Commitment Letter and the Fee Letter that the Alternative Financing would replace (taking into account any flex provisions) from the same or other sources and which do not include any incremental conditionality to the consummation of such financing areAlternative Financing that are more onerous to Parent, Seller and the Atlas Companies (in each case, in respect of certainty of funding, equivalent to (or more favorable to the Company thanaggregate) than the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace Letter (as applicable) in effect as of the Debt Financing date of this Agreement and (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect ii) immediately notify Seller of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters unavailability 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 Companyreason therefor. In the event any New Debt Commitment Letter is obtained, (i) any reference Notwithstanding anything in this Agreement to the “Debt contrary, under no circumstances shall Parent or its Affiliates be obligated to provide Financing” shall include .
(e) For purposes of the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (iiforegoing Section 6.17(a) belowthrough Section 6.17(d), (iii) any reference in this Agreement to the term “Debt Commitment Letter” shall be deemed to include the any commitment letter (or similar agreement) with respect to any Alternative Financing (that is debt financing) arranged in compliance herewith (and any Debt Commitment Letter which is not superseded by a New Debt Commitment Letter 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) and engagement letter (or similar agreement) with respect to any Alternative Financing arranged in compliance with this Section 6.17(e), (iii) the term “Debt Financing Sources” shall be deemed to include any Debt Financing Sources providing the Alternative Financing (that is debt financing) arranged in compliance herewith, (iv) the term “Subscription Agreement” shall be deemed to include any subscription agreement with respect to any Alternative Financing (that is equity financing) arranged in compliance herewith (and any Subscription Agreements remaining in effect at the time in question) and (v) the term “Equity Financing Sources” shall be deemed to include any Equity Financing Sources providing the Alternative Financing (the is equity financing) arranged in compliance herewith. Parent shall keep Seller reasonably informed on a reasonably current basis of the status of its efforts to consummate the Financing. Parent shall provide Seller with prompt written notice of any material breach, threatened material breach or material default by any party to any Subscription Agreement, the Debt Commitment Letter that is not superseded or the Definitive Debt Agreements of which Parent gains knowledge and the receipt of any written notice or other written communication from any Equity Financing Sources or Debt Financing Sources with respect to any material breach, threatened material breach or material default or, termination or repudiation by any New party to any Subscription Agreement, Debt Commitment Letter at or the time in question and each New Definitive 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 Agreements or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreementprovision thereof.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall, and shall cause its Subsidiaries 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 necessary, proper or advisable to consummate, on or prior to the Closing Date, the Financing contemplated by the Commitment Letters on the terms set forth therein. Parent shall keep the Company reasonably informed of material developments in respect of Parent’s efforts to arrange the Financing. Prior to the Closing, without the prior written consent of the Company, Parent shall not agree to, or permit, any amendment, modification or supplement of, or waiver under, the Commitment Letters to the extent such amendment, modification, supplement or waiver would (i) reduce the aggregate amount to be funded under the Financing (including by changing the amount of fees to be paid or original issue discount of the Financing or similar fees), (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, or (iii) adversely impact the ability of Parent to enforce its rights against the other parties to the Commitment Letters. Notwithstanding the foregoing, (x) Parent or its Subsidiary that is a party to the Commitment Letters may amend the Commitment Letters to add investors, lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letters as of the date of this Agreement 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 impact the aggregate amount of the Financing to be funded at the Closing or, individually or in the aggregate, would not be reasonably expected to delay or prevent the Closing or make it less likely the Financing will be funded, (y) neither this Section 8.15(a) nor any other provision herein shall be construed to require any of Parent or Merger Sub or any of their respective Affiliates to commence, threaten to commence or prosecute any claim, at law or in equity, against the other parties to the Commitment Letters or any other Person in order to consummate the Financing and (z) in the event that Parent or any of its Affiliates is required pursuant to this Section 8.15 to provide any information that is subject to attorney-client or similar privilege, Parent or such Affiliate may withhold disclosure of such information so long as Parent gives notice to the Company of the fact that it is withholding such information and thereafter 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 waive the applicable privilege or protection.
(b) In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letters 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 or proper to arrange and to obtain the Debt Financing alternative financing from alternative sources for such portion (x) on the terms and conditions described in the Debt Commitment Letter pursuant not materially less favorable 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 underits Subsidiaries, as applicable, than 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 Letters and (y) adversely affect in an amount sufficient to consummate 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 hereby. If obtained, 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, true and complete and correct copies of a new financing commitment letter pursuant to which any such alternative source shall have committed to provide Parent or any of its Subsidiaries with any portion of the Financing. References in this Agreement to (i) “Financing” shall include the mezzanine financing and term loan financing contemplated by the Commitment Letters as amended, modified or replaced, (ii) “Commitment Letters” shall include such documents as amended, modified or replaced and (iii) “Financing Sources” shall include the providers of the Mezzanine Financing and Term Loan 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 financing commitments pursuant to this Section 8.15 from and after such amendment, modification or replacement.
(b) Parent shall); provided, 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 fee letters 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 side letters which do not contain “Debt Financing Agreements”) on flex” or other provisions which affect the terms and or 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 not 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 effectprovided.
(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, necessary or advisable or proper to arrange the Debt Financing as promptly as practicable following the date of this Agreement (taking into account the anticipated timing of the Marketing Period) and obtain to consummate the Debt Financing on or before the terms and conditions described Closing Date, including the following:
(i) maintaining in effect the Debt Commitment Letter pursuant until the Transactions are consummated (subject to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts Parent’s right to seek to enforce its rights under replace, modify, waive or amend the Debt Commitment Letter in to the event of a breach thereof by the financing provider(sextent permitted thereunder and under this Section 5.10);
(ii) thereunder. Parent shall not, without the Company’s prior written consent, permit not permitting 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 if Letter, other than such amendmentamendments, supplementmodifications, replacement, modification waivers or waiver replacements that do not: (A) reduces reduce 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) unless the Funds Financing or is increased by a corresponding amount and an amended Funds Commitment Letter reflecting such increase is executed by the investment funds named therein and delivered to the Company, (B) imposes impose new or additional conditions to the initial funding receipt of the Debt Financing, amend or otherwise expands modify any of the conditions to the receipt of the Debt Financing in any manner adverse to the interests of the Company, or otherwise expand any 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 (xC)(1) materially delay or prevent the Closing beyond the date the Closing is required to be effected in accordance with Section 1.2, (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 the other parties to the Debt Commitment Letter or the definitive agreements with respect thereto Debt Financing Documents; provided that for the avoidance of doubt (provided, that Parent may amend x) the foregoing restrictions shall not apply to the implementation of any “market flex” provisions under the Debt Commitment Letter as in effect on the date hereof and (y) Parent may amend (or amend and restate) the Debt Commitment Letter, any related fee credit or discount and engagement letters solely to (a) add or replace lenders, lead arrangers, bookrunners, syndication agents or any Person with similar roles or titles who had not executed the Debt Commitment Letter as of the date hereof, in each case, in all material respects in accordance with the terms of the Debt Commitment Letter and (b) amend titles, allocations and fee sharing arrangements with respect to the existing and additional lenders, arrangers, bookrunners, agents, managers or similar entities so long as such action would not reasonably be expected to delay or prevent in each case, in all material respects in accordance with the Closing). terms of the Debt Commitment Letters; provided that Parent shall promptly deliver furnish to the Company true, complete and correct copies of any agreements or other documentation with respect to such amendment, modification or replacement.;
(biii) Parent shallcausing the Funds Financing to be consummated upon satisfaction of the conditions contained in the Funds Commitment Letter;
(iv) satisfying on a timely basis (taking into account the anticipated timing of the Marketing Period) all conditions to the Debt Financing and the Funds Financing;
(v) negotiating, executing and shall cause its Affiliates delivering Debt Financing Documents that reflect the terms and Representatives to, use its reasonable best efforts (A) to maintain conditions contained in effect the Debt Commitment Letter (provided that including any “market flex” provisions related thereto) or such other terms as Parent may agree so long as such changes to the terms do not: (A) reduce the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing) unless the Funds Financing is increased by a corresponding amount and an amended Funds Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)reflecting such increase is executed by the investment funds named therein and delivered to the Company, (B) impose new or additional conditions to negotiate and enter into definitive agreements the receipt of the Debt Financing, amend or modify any of the conditions to the receipt of the Debt Financing in any manner adverse to the interests of the Company, or otherwise expand any conditions to the receipt of the Debt Financing, or (C)(1) materially delay or prevent the Closing beyond the date the Closing is required to be effected in accordance with respect Section 1.2, (2) make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (3) adversely impact the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter (or the “definitive Debt Financing Agreements”Documents; and
(vi) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, event that (CA) 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 Sections 6.1 and 6.3 have been satisfied (or, upon funding, would be satisfied) and (B) the conditions to the availability of the Debt Commitment LetterFinancing have been satisfied or waived (or, with the funding of the Debt Financing, would be concurrently satisfied), causing the applicable Financing Sources to consummate fund the full amount of the Debt Financing at or prior to the Closing, .
(Db) 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 orParent shall, upon funding reasonable written 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 the Company reasonably informed on a current basis and in reasonable detail from time to time of the status of its efforts to arrange the Financing. Parent shall give the Company prompt notice of (i) any material breach or repudiation, or any threatened material breach or repudiation, by any party to the Commitment Letters of which Parent becomes aware and (ii) any material dispute or disagreement among any parties to the Debt Financing, Commitment Letter or the definitive agreements related to the Financing with respect to the obligation to fund or the amount of the Financing to be funded at Closing (and, for the avoidance of doubt, other than those related to the ordinary course negotiation of the definitive Debt Financing Documents). Without limiting Parent’s other obligations under this Section 5.10, if Parent becomes aware that a Financing Failure Event has occurred, Parent shall (i) promptly following request notify the Company of such Financing Failure Event and the reasons therefor, (ii) use its reasonable best efforts to obtain (on terms in all material respects as favorable to Parent as are reasonably available for financings of the type contemplated by the CompanyDebt Commitment Letter in the debt markets at such time) alternative financing from alternative financing sources, in an amount sufficient (together with the Funds Financing) to pay the Merger Consideration and consummate the Transactions, as promptly as practicable following the occurrence of such event, and (iii) use its reasonable best efforts to obtain, and when obtained, promptly provide the Company with a copy of, a replacement financing commitment in accordance with Section 5.11(a)(ii) that provides for such alternative financing; provided, that if such alternative financing is obtained, any references to the Company copies of all executed Debt Financing Agreementsshall be deemed to include such alternative financing.
(c) Parent shall use reasonable best efforts to enforce its rights under the Commitment Letters, including in the event of a Financing Failure Event.
(d) Without limiting the foregoing, Parent agrees shall use reasonable best efforts to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior cause to be delivered to the Closing Date (i) Financing Sources the financial statements of Pattonair and its Subsidiaries and take all other actions to satisfy the conditions set forth in paragraphs 10 and 11 of Annex VI 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 related 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 Pattonair 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 effectSubsidiaries.
(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 consummate and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to by the terms thereof (including any “market flex” provisions) Closing, 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 and comply 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 material respects with its obligations under the Debt Commitment Letter, and (Eii) to consummate the Debt Financing at or prior satisfy on a timely basis all conditions to the Effective Time. In funding of the event that all conditions precedent expressly Financing set forth in the Debt Commitment Letter have been or, upon funding of or the Debt Financing will be, satisfied, Parent definitive financing agreements and Sub shall use their reasonable best efforts to enforce their rights under, (iii) negotiate and cause enter into definitive agreements with respect thereto on the Financing Sources, lenders terms and the other persons providing or committing to provide the Debt Financing to comply with their obligations under conditions contemplated by the Debt Commitment Letter (including after giving effect to any “market flex” provisions in connection with the Financing) or, if available, on other terms that are acceptable to Parent and definitive financing agreements would not adversely affect in any material respect (including with respect to timing and conditionality) the ability of Parent, OpCo and Merger Sub to fund on or before consummate the Effective Time transactions contemplated herein (the “Debt FinancingFinancing Agreements”). Parent shall keep the Company informed on a current regular 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 effect of the foregoing, 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 of (i) any material breach or default by any other party to the Debt Commitment Letter is terminated for any reasonor the Debt Financing Agreements of which Parent becomes aware, (ii) Parent becomes aware the receipt of any breach written notice or default (A) other written communication with respect to any actual or potential breach, default, termination or repudiation by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party provision thereof or any material dispute or disagreement between or among any parties to the Debt Commitment Letter or any Debt Financing Agreement ifwith respect to the obligations to fund the Financing or the amount of the Financing to be funded at the Closing, in and (iii) the case of this clause (B), such breach expiration or default would reasonably be expected to affect the availability termination for any reason of the Debt Financing Commitment Letter or (iii) a counterparty indicates in writing the commitments thereunder or orally that it will not provide, or it refuses to provide, if for any reason all or any portion of the Debt Financing contemplated by becomes unavailable.
(b) Parent shall not, and shall not permit OpCo or Merger Sub to, agree to or permit any termination, amendment, replacement, supplement or other modification of, or waive any of its material rights under, the Debt Commitment Letter on or the terms set forth therein. Parent Debt Financing Agreements without the Company’s prior written consent (which consent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(cnot be unreasonably withheld, conditioned or delayed). Parent shall not; provided that Parent, nor shall it permit any of its Affiliates toOpCo and Merger Sub may, without the Company’s prior written consent of the Company, take any action or (i) enter into any transaction amendment, replacement, supplement or other modification to or waiver of any provision of the Debt Commitment Letter or the Debt Financing Agreements that does not (w) reduce the aggregate amount of net cash proceeds from the Financing below the amounts otherwise required to be paid by Parent, OpCo or Merger Sub hereunder in cash, (x) impose new or additional conditions to the funding of the financing, (y) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Debt Commitment Letter or the Debt Financing Agreements or (z) otherwise contain any provisions that would reasonably be expected to prevent, materially impair, delay or prevent materially impede 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 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 Transactions; and (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.amend the
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this AgreementAgreement and the Financing Letters, each of 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 Merger Sub shall not, without the Company’s prior written consentconsent of the Company, permit or grant any withdrawal, rescindment, amendment, replacement, supplement, replacement consent or modification to be made to, or any waiver of any provision underor remedy pursuant to, the Financing Letters or any definitive agreement relating to the Debt Commitment Letter Financing if such withdrawal, rescindment, amendment, replacement, supplement, replacementconsent, modification or waiver would, or would reasonably be expected to (Ai) reduces reduce the aggregate amount of the cash proceeds from the Debt Financing or to an amount such that Parent and Merger Sub would not have the Required Funds (Bafter taking into account funds otherwise available from internally generated cash flow); (ii) 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 (including expanding the information required to be provided by the Company) or otherwise expands, amends or modifies any other provision of terms to the Debt Commitment Letter Financing in a manner that would reasonably be expected to (xA) materially delay or prevent the Closing; or (B) make the timely funding in full of the Debt Financing (Financing, or the satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, materially less likely to occur in any respect; or (yiii) adversely affect impact the ability of Parent Parent, Merger Sub or the Company, as applicable, to enforce its rights against the other parties to the Debt Commitment Letter Financing 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)thereto. Parent shall promptly deliver furnish to the Company true, a true and complete and correct copies copy of any such amendment, modification replacement, supplement, modification, consent or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) waiver relating to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified Financing Letters or waived as provided in this Section 6.13), (B) to negotiate and enter into any definitive agreements with respect relating 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 Any reference in this Agreement to (1) the “Debt Financing” shall will include the debt financing contemplated by the Debt Commitment Letter Financing Letters as amended or modified pursuant to clause and (ii2) below, (ii) any reference in this Agreement to the “Debt Commitment LetterLetters” or “Financing Letters” will include such documents as amended or modified. Parent shall be deemed not release or consent to include the termination of any individual lender under the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at Letters, except for (x) assignments and replacements of an individual lender under the time in question and each New Debt Commitment Letter to the extent then in effectterms of, and (iii) any reference only in this Agreement to “fee letter” shall be deemed to include any fee letter relating to connection with, the syndication of the Debt Financing under the Debt Commitment Letter that is not superseded by any New Letters; or (y) replacements of the Debt Commitment Letter at the time in question and each New Debt Commitment Letter Letters with alternative financing commitments pursuant 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)(iii5.14(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
Sources: Merger Agreement (Forterra, 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 or 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 and in accordance with the terms and conditions (including agreeing to any requested changes to the commitments thereunder in accordance with any flex provisions therein) described in the Debt Financing Commitment Letter Letters, and the contribution contemplated by the Rollover Agreement pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts thereof, and, subject to seek to enforce its rights under the Debt Commitment Letter in the event terms and conditions of a breach thereof by the financing provider(s) thereunder. Parent this Agreement, 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 Financing Commitment Letter Letters or the Rollover Agreement if such amendment, supplement, replacement, modification or waiver (A) with respect to the Financing Commitment Letters, reduces (or could have the effect of reducing) the aggregate amount of the cash proceeds from Financing (including by increasing the amount of fees to be paid or original issue discount unless (x) the Debt Financing or the Equity 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) the representation and warranty set forth in Section 5.10 shall be true and correct as of the date of such amendment, modification or waiver after giving effect thereto), 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 conditions to the Financing or the contribution contemplated by the Rollover Agreement, 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 the contribution contemplated by the Rollover Agreement (or satisfaction of the conditions to the Debt FinancingFinancing or the contribution contemplated by the Rollover Agreement) on the Closing Date, Date or (y) adversely affect impact the ability of Parent Parent, Merger Sub or the Company, as applicable, to enforce its rights against other parties the Debt Financing sources pursuant to the Debt Financing Commitment Letter Letters or the definitive agreements with Rollover Agreement, in each of clauses (x) and (y) in any material respect thereto (provided, that that, subject to compliance with the other provisions of this Section 6.17(a), Parent and Merger Sub may amend 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 amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) waiver to maintain in effect the Debt any Financing Commitment Letter (provided that or the Debt Rollover Agreement. References to “Financing” shall include the financing contemplated by the Financing Commitment Letter may Letters as permitted to be amended, supplemented, replaced, modified or waived as provided in by this Section 6.136.17(a), (B) references 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 permitted to be amended, modified pursuant to clause (ii) belowor waived by this Section 6.17(a), (ii) any reference in this Agreement references to the “Rollover Investment” shall include the financing contemplated by the Rollover Agreement as permitted to be amended, modified or waived by this Section 6.17(a) and references to “Debt Commitment Letter” shall include such documents as permitted to be deemed amended, modified or waived by this Section 6.17(a). 69 Each of Parent and Merger Sub shall use its commercially reasonable efforts (A) to include maintain, or cause to be maintained, in effect and effect the Debt Financing Commitment Letter which is not superseded by a New Debt Commitment Letter at Letters and the time in question Rollover Agreement on the terms and each New Debt Commitment Letter conditions set forth therein, (B) to the extent then in effect, promptly negotiate and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating enter into definitive agreements with respect to the Debt Commitment Letter that is not superseded by on the terms and conditions (including agreeing to any New requested changes to the commitments thereunder in accordance with any flex provisions therein) contained in the Debt Commitment Letter at (or on terms no less favorable in the time aggregate to Parent or Merger Sub than the terms and conditions (including flex provisions) in question and each New the Debt Commitment Letter, subject in all respects to any restrictions on amendments or modifications set forth in by this Section 6.17), (C) to satisfy, or cause to be satisfied, on a timely basis all conditions to funding in the Debt Commitment Letter and such definitive agreements thereto and in the Equity Commitment Letter and the Rollover Agreement that it is required to satisfy and to consummate the Financing and make the Rollover Investment at or prior to the extent then in effect.
(e) On Closing, including using its commercially reasonable efforts to cause the lenders and the other persons committing to fund the Financing and make the Rollover Investment, to fund the Financing and make the Rollover Investment at the Closing Dateon the terms and conditions set forth therein, (D) to promptly, diligently and fully enforce its rights under the Financing Commitment Letters and Rollover Agreement and (E) to comply with its, or cause their Affiliates to comply with their, obligations under the Financing Commitment Letters and the Rollover Agreement. Parent shall keep the Company fully informed, in all reasonable detail, of the status of its efforts to arrange and consummate the Debt Financing and of all material developments in respect thereof. Parent shall provide all funds required the Company, upon request, with copies of any executed material definitive documents in respect of the Debt Financing and such other information and documentation regarding the Debt Financing and any syndication efforts as shall be reasonably necessary to effect the repayment of all indebtedness under allow the Company Credit Agreement in full in accordance with to monitor the progress of such financing activities. Without limiting the generality of the foregoing, Parent and Merger Sub shall give the Company Credit prompt notice (x) of any actual or threatened breach or default by any party to any of the Financing Commitment Letters, Rollover Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything or definitive agreements related to the contrary contained hereinFinancing of which Parent or Merger Sub become aware, Parent’s obligations hereunder are not subject (y) of the receipt of (A) any written notice or (B) other written communication, in each case from any Financing source with respect to a condition regarding Parent’s any (1) actual or threatened breach, default, termination or repudiation by any party to any of its Affiliates’ obtaining funds the Financing Commitment Letters, Rollover Agreement or definitive agreements related to consummate the Financing of any provisions of the Financing Commitment Letters, Rollover Agreement or definitive agreements related to the Financing or (2) material dispute or disagreement between or among any parties to any of the Financing Commitment Letters, Rollover Agreement or definitive agreements related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Closing, and (z) if at any time for any reason Parent or Merger Sub believes in good faith that it will not be able to obtain the Financing or the Rollover Investment on the terms and conditions, in the transactions amount, in the manner or from the sources contemplated by this Agreement.any of the Financing Commitment Letters, the Rollover Agreement or definitive agreements related to the Financing. As soon as reasonably practicable, but in any event within two (2) Business Days of the date the Company delivers to Parent or Merger Sub a written request, Parent and Merger Sub shall provide any information reasonably requested by
Appears in 1 contract
Sources: Merger Agreement (Lionbridge Technologies 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 subject only to the conditions described in the Commitment Letters as promptly as possible but in any event prior to the date on which the Merger is required to be consummated pursuant to the terms hereof, including (i) maintaining in effect the Commitment Letters until the Closing or earlier funding of the Financing contemplated thereby, (ii) negotiating and entering into definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) consistent with the terms and conditions contained in the Debt Commitment Letter pursuant or on other terms in the aggregate not materially less favorable to Parent, and without any Prohibited Modification, (iii) satisfying on a timely basis all conditions that are applicable to Parent obtaining the terms thereof Financing in the Commitment Letters and the Definitive Agreements and comply with their obligations thereunder, in each case, that are within Parent’s control and (including any “market flex” provisionsiv) 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(sLetter.
(b) thereunder. Parent shall not, without the Company’s prior written consentconsent of the Company: (i) permit, permit consent to or agree to any amendment, supplementreplacement, replacement supplement or modification to be made to, or any waiver of of, any provision or remedy under, the Debt Commitment Letter Letters if such amendment, replacement, supplement, replacementmodification, 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 amount of the cash proceeds from Equity Financing or reduces the Debt Financing or unless, in such case, there is a corresponding increase in any equity commitment under the Equity Commitment Letter, (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 (yC) adversely affect affects the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter Letters as so amended, replaced, supplemented or otherwise modified, relative to the definitive agreements ability of Parent to enforce its rights against the other parties to the Commitment Letters as in effect on the date of this Agreement or (D) would otherwise reasonably be expected to prevent, impede or materially delay the consummation of the Merger and the other transactions contemplated by this Agreement (the effects described in clauses (A) through (D), collectively, the “Prohibited Modifications”) or (ii) terminate or cause the termination of the Commitment Letters. Notwithstanding the foregoing, any amendment, supplement, amendment and restatement, or modification to add any additional agents or other financial institutions thereto as provided for therein shall be permitted and shall not require written consent of the Company or any other Person so long as such additional agents or other financial institutions are financial institutions whose creditworthiness, in Parent’s sole determination, is commensurate with respect thereto the creditworthiness of the Commitment Parties (provided, that Parent may amend as defined in the Debt Commitment Letter as of the date hereof) that are party to the Debt Commitment Letter as of the date hereof. Other than with respect to amendments to the Debt Commitment Letter which solely add or replace lendersarrangers and lenders and make related conforming modifications in respect thereof, 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, replacement, supplement, modification or replacementwaiver in respect of the Debt Commitment Letter.
(bc) In the event that any portion of the Debt Financing becomes unavailable, regardless of the reason therefor, Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts to (Ai) to maintain in effect notify the Debt Commitment Letter Company of the unavailability and (provided that ii) arrange and obtain, as promptly as practicable following the Debt Commitment Letter may be amendedoccurrence of such event, supplemented, replaced, modified alternative financing for any such unavailable portion from the same or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter alternative sources (the “Debt Financing AgreementsAlternative Financing”) in an amount sufficient, when taken together with the available portion of the Financing and cash on hand to fund the Financing Amounts on the Closing Date; provided that in no event shall Parent be required to (i) agree to Alternative Financing on terms and conditions that are not conditions, taken as a whole, 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), 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 LetterLetter in effect on the date hereof, to consummate (ii) seek equity financing (other than the Debt Equity Financing at or prior on the terms and subject to the Closing, (D) to comply with its obligations under conditions in the Debt Equity Commitment Letter) or (iii) pay or incur materially more (taken as a whole) fees, and (E) to consummate the Debt Financing at original issue discounts or prior pricing relative to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding pricing or fee 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 Commitment Letter and definitive financing agreements and to fund the Fee Letter, each as in effect on the date hereof. To the extent Parent obtains Alternative Financing or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail amends, replaces, supplements, terminates, modifies or waives any of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide in each case pursuant 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 not6.13, 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 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 (Premier, Inc.)
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.
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, 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 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.or
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 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.
Appears in 1 contract
Financing. (a) Subject to the terms Each of Parent and conditions of this Agreement, Parent Merger Sub 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 with respect to seek (i) maintaining in effect the Commitment Letters, (ii) negotiating definitive agreements with respect to enforce its rights under the Debt Commitment Letter Financing (the “Definitive Agreements”) consistent with the terms and conditions contained in the Commitment Letters or, if available, on other terms that are acceptable to Parent and would not adversely affect (including with respect to timing) the ability of Parent and its Affiliates to consummate the transactions contemplated herein, and (iii) satisfying on a timely basis all conditions applicable to Parent and its Subsidiaries to obtaining the Financing. In the event that all conditions contained in the Commitment Letters have been satisfied (or upon funding will be satisfied), each of a breach thereof by Parent and Merger Sub shall use its reasonable best efforts to timely cause the financing provider(sLenders and Equity Investors to fund the Financing.
(b) thereunder. Parent shall not, without the Company’s prior written consentconsent of the Special Committee, (i) terminate the Commitment Letters, unless the Commitment Letters are replaced in a manner that would not conflict with the following clause (ii), or (ii) permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any material provision or remedy under, the Debt or replace, either Commitment Letter if such amendment, supplementmodification, replacementwaiver, modification or waiver replacement (Aw) would (1) add any material new condition to either Financing Commitment (or modify any existing condition in a manner materially adverse to Parent or Merger Sub) or otherwise that would be reasonably expected to materially adversely affect the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreement or the likelihood of Parent and Merger Sub doing so, or (2) be reasonably expected to make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occur, (x) reduces the aggregate amount of the cash proceeds from Financing (including by increasing the Debt Financing or (B) imposes new or additional conditions aggregate amount of fees to the initial funding or otherwise expands any be paid in respect 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) would materially adversely affect the ability of Parent or any of its Affiliates to enforce its rights against other parties to the Debt either such 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 z) would not reasonably be expected to prevent, impede or materially delay or prevent the Closing). Parent shall promptly deliver to consummation of the Company true, complete Merger and correct copies of any such amendment, modification or replacementthe other transactions contemplated by this Agreement.
(bc) In the event that any portion of the Financing becomes unavailable, regardless of the reason therefor, Parent shall, shall (i) promptly notify the Special Committee of such unavailability and shall cause its Affiliates the reason therefor and Representatives to, (ii) use its reasonable best efforts to obtain as soon as possible following the occurrence of such event, alternative financing (Ain an amount sufficient to replace such unavailable Financing) to maintain in effect from the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified same or waived as provided in this Section 6.13), (B) to negotiate other sources 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 no less favorable in the aggregate to the 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 unavailable Financing.
(d) Parent shall have provide the right to substitute the net cash proceeds received Special Committee with prompt oral and written notice (i) of (x) any material breach or default by Parent after the date hereof and prior any party to the Closing from consummated offerings Commitment Letters or the Definitive Agreements or any termination of the Commitment Letters, (y) the receipt of any written notice or other incurrences written communication to Parent or any of debt its Affiliates from any Lender or Equity Investor, or other financing source with respect to any actual or threatened breach, default, termination or repudiation by any party to the Commitment Letters or the Definitive Agreements or any provision thereof or (including notesz) by any material dispute or disagreement between or among Parent and any of its Affiliates, on the one hand, and the Lenders and Equity Investors, on the other hand, or, to the Knowledge of Parent, among any Lenders or Equity Investors to the Commitment Letters or the Definitive Agreements with respect to the obligation to fund any of the Financing or the amount of the Financing to be funded at Closing, and (ii) if at any time for any reason Parent or any of its Affiliates believes in good faith that it will not be able to obtain all or any portion of the Debt Financing on the terms and conditions, in the manner or from the sources contemplated by reducing commitments under the Debt Commitment Letter; provided that (v) such offering Letters or other incurrence of debt does not result in the Definitive Agreements. Parent shall keep the Special Committee reasonably informed on a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount current basis of the Debt Financing committed under status of its efforts to consummate 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, Financing.
(xe) 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 Notwithstanding anything 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 contrary, nothing in this Agreement shall (i) confer upon the Company, its stockholders or any of their respective Affiliates any right or cause of action against the Lenders or their current or future Representatives (collectively, the “Lender Related Parties”) or with respect to the Debt Financing” shall include the debt financing contemplated by Financing Commitment, the Debt Commitment Letter as modified pursuant to clause or any other agreement related thereto or (ii) belowrequire the Merger Sub, (ii) the Parent or any reference of their Affiliates to bring any legal proceeding against any Lender or Lender Related Party for any reason, including with respect to the Debt Financing Commitment, the Debt Commitment Letter or any other agreement related thereto. Notwithstanding anything contained in this Agreement to the “contrary, the Company, on behalf of itself and its Affiliates and any Person claiming by, through or on behalf of the Company, (x) hereby waives any claims or rights against any Lender or Lender Related Party relating to or arising out of this Agreement, the Debt Commitment Letter” shall be deemed to include Financing Commitment, the Debt Commitment Letter which is and the transactions contemplated hereby and thereby, whether at law or in equity and whether in tort, contract or otherwise, (y) hereby agrees not superseded by a New to bring any legal proceeding against any Lender or Lender Related Party in connection with this Agreement, the Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectFinancing Commitment, 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 hereby and thereby, whether at law or in equity and whether in tort, contract or otherwise, and (z) hereby agrees to cause any legal proceeding asserted against any Lender or Lender Related Party by any such Person in connection with this Agreement, the Debt Financing Commitment, the Debt Commitment Letter and the transactions contemplated hereby and thereby to be dismissed or otherwise terminated, in each case, solely in their capacity as a Lender or Lender Related Party. In furtherance and not in limitation of the foregoing waivers and agreements, it is acknowledged and agreed that no Lender or Lender Related Party shall have any liability for any claims or damages to Company, its stockholders or any of their respective Affiliates in connection with this Agreement, the Debt Financing Commitment, the Debt Commitment Letter and the transactions contemplated hereby and thereby.
Appears in 1 contract
Financing. (a) Subject to the other terms and conditions of this Agreement, Parent the 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 consummate the Debt Equity Financing 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 its reasonable best efforts to seek (x) satisfy, or cause to enforce its rights under the Debt Commitment Letter be satisfied, on a timely basis, any conditions within Buyer’s control to funding in the Equity Commitment Letters and (y) upon satisfaction of the conditions set forth in Article VI (Conditions) (other than those that, by their nature, are to be satisfied at the Closing, all of which are capable of being satisfied at the Closing), consummate the Equity Financing at or prior to the Closing. Upon the reasonable written request of the Seller, Buyer shall provide Seller with a reasonable update of the status of its efforts to arrange the Equity Financing. The Buyer shall promptly notify the Seller in writing (A) if there exists any actual or potential breach or default (or any event or circumstance that, with or without notice, lapse of a time or both, would reasonably be expected to give rise to any material breach thereof or default) by any party to the Equity Commitment Letters, (B) of the receipt by the financing provider(sBuyer or any Sponsor or any of their respective Representatives of any written or oral notice with respect to any potential or actual breach, default, termination or repudiation by any party to the Equity Commitment Letters or (C) thereunderif, for any reason, the Buyer no longer believes in good faith that it will be able to obtain all or any portion of the Equity Financing contemplated by the Equity Commitment Letters on the terms described therein. Parent The Buyer shall not, without the Company’s prior written consent, permit not consent to (a) any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision under, the Debt Equity Commitment Letter Letters if such amendment, supplement, replacement, modification or waiver (Ai) reduces decreases the aggregate amount of the cash proceeds from the Debt Financing or Equity Financing, (Bii) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, Equity Financing or (iii) would otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (xA) prevent, jeopardize or delay or prevent the Closing, (B) make the funding in full of the Debt Equity Financing (or satisfaction of the conditions materially less likely to the Debt Financing) on the Closing Date, occur or (yC) adversely affect impact the ability of Parent the Buyer to enforce its rights against the other parties to the Debt Equity Commitment Letter or Letters, in each case without prior consent of 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)Seller. Parent The Buyer shall promptly deliver furnish to the Company true, complete and correct copies Seller a copy of any such amendment, modification modification, waiver or replacement.
(b) Parent consent of or relating to the Equity Commitment Letters. The Buyer 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 amendedrefrain from taking, supplementeddirectly or indirectly, 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 result in the failure of all or any portion of the Debt Financing.
(d) Parent shall have conditions contained in 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 Equity 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 or 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 definitive agreement 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 effectEquity 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
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 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 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 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)Documents, (Bii) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter Financing (the “Debt Financing Definitive Agreements”) on consistent with the terms and conditions contained therein or on other terms that are not materially no less favorable to Parent than those contained in the Debt Commitment 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 applicable to receipt of the full amount of Parent to obtaining 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 TimeParent’s control. In the event that all conditions precedent expressly set forth contained in the Debt Commitment Letter have been or, satisfied (or upon funding of the Debt Financing will be, be satisfied), Parent and Sub shall use their its reasonable best efforts to enforce their rights under, and timely cause the Financing Sources, lenders and the other persons providing or committing Lenders to provide fund the Debt Financing to comply with their obligations under at 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 AgreementsClosing.
(cb) 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.
Sellers Representative: (di) 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, terminate the Debt Commitment Letter, unless the Debt Commitment Letter is replaced in a manner consistent with the following clause (wii); or (ii) permit any amendment or modification to, or any waiver of, any provision or remedy under, or replace, the Debt Commitment Letter if such amendment, modification, waiver, or replacement (A) would (1) add any new condition to the Debt Financing Commitment (or modify any existing condition in a manner materially adverse to Parent) that would be reasonably expected to materially and adversely affect (including with respect to timing)) the ability of Parent to consummate the transactions contemplated by this Agreement and the Transaction Documents, or (2) 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, (B) reduces the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following to an amount 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 that the transactions contemplated hereby or by this Agreementthe Transaction Documents could not be consummated or (C) would reasonably be expected to prevent, (x) impede or materially delay 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 Merger 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 arethe Transaction Documents; provided, in respect of certainty of fundingthat, equivalent to (or more favorable to notwithstanding the Company than) the conditions precedent set forth in foregoing, it is hereby understood and agreed that Parent may amend the Debt Commitment LetterLetter to add lenders, to supplement lead arrangers, bookrunners, syndication agents 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 similar entities who had 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 executed the Debt Commitment Letter as modified pursuant of the date hereof and provide such lenders, lead arrangers, bookrunners, syndication agents or similar entities with consent rights with respect to clause (ii) below, (ii) any reference in this Agreement 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 reduced as a result of any such amendment. Parent shall promptly deliver to the Sellers Representative copies of any amendment, modification, waiver or replacement of any Debt Financing Commitment or of any fee or other letter or agreement relating thereto. Upon any such amendment, supplement, modification or replacement of the Debt Financing Commitment in accordance with this SECTION 4.13(b), the terms “Debt Financing Commitment”, “Debt Financing” and “Debt Commitment Letter” shall be deemed mean the “Debt Financing Commitment”, “Debt Financing” and “Debt Commitment Letter” as so amended, supplemented, modified or replaced and the term “Lenders” shall mean the lenders party to include the such 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 effectsupplemented, modified or replaced.
(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 not agree 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 supplement or other 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 the definitive agreements relating to the Debt Financing that (Ai) reduces the aggregate amount of the cash proceeds from Debt Financing below an amount, together with the amount of any equity financing (including pursuant to the Equity Purchase), required to pay the Required Payment Amount or (ii) (A) imposes new or additional conditions precedent or other terms to the Debt Financing or (B) imposes new otherwise adversely expands, amends or additional conditions to the initial funding or otherwise expands modifies any of the conditions precedent to the receipt of the Debt Financing, or otherwise expandsexpand, amends or modifies any other provision of the Debt Commitment Letter Letter, in the case of clauses (A) and (B), in a manner that would reasonably be expected to (x) delay prevent, impede or prevent materially delay, the ability of Parent to consummate the Closing, (y) make the timely funding in full of the Debt Financing (or the satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, materially less likely to occur in any respect or (yz) adversely affect impact the ability of Parent to enforce its 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). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacementthereto.
(b) Parent Prior to the Effective Time, the Company shall, and shall cause its Affiliates and Representatives Subsidiaries to, use commercially reasonable efforts to, at Parent’s sole cost and expense, provide to Parent such cooperation in connection with the Debt Financing (which, for purposes of this Section 8.11(b), shall also include any other financing efforts of Parent), as may be reasonably requested by Parent or its Representatives (unless such cooperation unreasonably interferes with the business operations of the Company and its Subsidiaries), including:
(i) furnishing such financial statements and other financial data and other information relating to the Company and its Subsidiaries and requested by Parent or its Representatives as may be reasonably necessary or advisable to consummate the Debt Financing, including financial statements, financial data, projections, audit reports and other information (x) of the type and form required by Regulation S-X and Regulation S-K promulgated under the 1933 Act for a registered public offering of debt securities on Form S-1, (y) of the type and form customarily included in private placements of debt securities under Rule 144A of the 1933 Act, or (z) as otherwise reasonably required in connection with the Debt Financing or as otherwise necessary in order to assist in receiving customary “comfort” (including “negative reassurance” comfort) from independent accountants in connection with offering(s) of debt securities in connection with the Debt Financing; provided that the Company’s sole obligation with respect to the preparation of any pro forma financial information and financial statements for inclusion in any confidential information memorandum, prospectus, offering memorandum or other marketing and syndication materials shall be as set forth in clause (ix) of this Section 8.12(b);
(ii) using commercially reasonable best efforts to cause its independent accountants to cooperate with the Financing Sources consistent with their customary practice and obtain customary accountants’ “comfort letters” (including customary “negative assurances”) and customary consents to the inclusion of audit reports in connection with the Debt Financing;
(iii) providing information related to the Company and its Subsidiaries reasonably necessary to assist Parent in the preparation of one or more confidential information memoranda, prospectuses, offering memoranda and other marketing and syndication materials reasonably requested by Parent or any of its Affiliates;
(iv) providing the reasonable use by Parent and its Affiliates of the Company’s and its Subsidiaries’ logos for syndication and underwriting, as applicable, of financing (subject to advance review of and consultation with respect to such use); provided that such logos are used solely in a manner that is reasonable and customary for such purposes and that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries or any of their respective products, services, offering or intellectual property rights;
(v) participating in a reasonable and limited number of meetings, presentations and road shows with prospective lenders and investors and in drafting sessions and due diligence sessions, as applicable;
(vi) facilitating the pledging of, and granting, recording and perfection of security interests in share certificates, securities and other collateral as reasonably requested by Parent, including executing and delivering any pledge and security documents, other definitive financing documents, or other certificates or documents as may be reasonably requested by Parent (including a certificate of the chief financial officer of the Company or one or more of its Subsidiaries with respect to solvency matters), and obtaining surveys and title insurance as reasonably requested by Parent;
(vii) providing information reasonably necessary to assist Parent in its preparation of material relating to the Company and its Subsidiaries for rating agency presentations;
(viii) providing at least three Business Days prior to the Closing all documentation and other information about the Company and its Subsidiaries as is required by applicable “know your customer” and anti-money laundering rules and regulations in- cluding the USA PATRIOT Act to the extent requested by the Financing Sources at least ten Business Days prior to the anticipated Closing;
(ix) providing information reasonably necessary to assist Parent with the preparation of pro forma financial information and financial statements to the extent required by SEC rules and regulations or necessary or reasonably required by the Financing Sources to be included in any offering documents; and
(x) obtaining customary payoff letters in connection with repayment of existing indebtedness of the Company and its Subsidiaries reasonably requested by Parent; provided that (1) neither the Company nor any of its Subsidiaries nor any of their respective Affiliates or Representatives shall be required to (A) to maintain pay any commitment or other fees, in effect each case, in connection with 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, (B) give any indemnities in connection with the Debt Financing, (C) take any action that, in the good faith determination of the Company, would unreasonably interfere with the conduct of the business or the Company and its Subsidiaries or create an unreasonable risk of damage or destruction to negotiate and enter into definitive agreements any property or assets of the Company or any of its Subsidiaries, (D) provide any information the disclosure of which is prohibited or restricted under Applicable Law or subject to legal privilege, (E) take any action that will conflict with or violate its organizational documents or any Applicable Law or would result in a violation or breach of, or default under, any agreement to which the Company or any of its Subsidiaries is a party or (F) execute any agreement, certificate, document or instrument pursuant to this Section 8.12(b) with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) that is not contingent 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, (D2) the effectiveness of any definitive documentation delivered pursuant to comply this Section 8.12(b) executed by the Company or any of its Subsidiaries with its obligations under respect thereto, and the attachment of any Lien, shall be subject to the consummation of the Closing and the occurrence of the Effective Time, (3) no director, officer or employee of the Company or any Subsidiary of the Company shall be required to execute any agreement, certificate, document or instrument pursuant to this Section 8.12(b) with respect to the Debt Commitment LetterFinancing, (4) no officer or other Representative of the Company or any of its Subsidiaries that will not continue employment with New Charter or one of its Subsidiaries following the Closing shall be required to deliver any certificate or opinion or take any other action pursuant to this Section 8.12(b) other provisions of this Agreement and (E5) to consummate the Debt Financing at members of the Board of Directors of the Company or any of its Subsidiaries as of immediately 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 Time shall not be required to approve any Debt Financing or definitive documents related thereto.
(c) Parent will be, satisfied, Parent promptly reimburse the Company for all reasonable and Sub shall use their reasonable best efforts to enforce their rights under, documented out-of-pocket costs and cause expenses (including legal fees and expenses) incurred by the Financing Sources, lenders Company and the other persons providing or committing to provide the Debt Financing to comply its Subsidiaries in complying with their obligations under the Debt Commitment Letter and definitive financing agreements and respective covenants pursuant to fund on Section 8.12(b) or before the Effective Time otherwise in connection with the Debt Financing. Parent shall keep indemnify, defend and hold harmless 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 promptlySubsidiaries, and each of their respective directors, officers, employees, agents and other Representatives from and against any and all losses, damages, claims, interest, costs, expenses, awards, judgments, penalties and amounts paid in any event within two (2) Business Dayssettlement suffered or incurred, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reasondirectly or indirectly, (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 Debt Financing other than with respect to any information provided or prepared by the Company or its Subsidiaries in connection therewith if such loss, damage or other amount is found by a court of competent ju- risdiction to have resulted from the gross negligence or willful misconduct of the Company or any of its Subsidiaries. Notwithstanding anything herein to the contrary, Parent hereby acknowledges and agrees that the condition set forth in Section 9.02(a)(i) of 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 as it applies to the Company. If commitments ’s obligations under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentenceSection 8.12(b), 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 deemed satisfied unless the Debt Financing from the same and/or alternative financing sources so long has not been obtained primarily as the aggregate amount a result 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 Company’s Willful Breach 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”its obligations under Section 8.12(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 Notwithstanding anything 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 contrary, each of Parent, New Charter, Merger Sub One and Merger Sub Two acknowledges and agrees that 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 Closing 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) conditioned upon Parent obtaining 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 Each of Parent and Merger Sub shall use, and shall cause their Affiliates 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 (i) arrange and obtain the Debt proceeds of the Financing on the terms and conditions described in the Debt Commitment Letter pursuant Financing Commitments, (ii) enter into definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitments or on other terms and conditions not in violation of this Section 6.6 and (iii) satisfy on a timely basis all conditions applicable to Parent, Merger Sub or their Affiliates in such definitive agreements. Anything in this Agreement to the terms thereof (contrary notwithstanding, Parent and Merger Sub shall be permitted to amend, modify or supplement the Financing Commitments or replace any portion of the Financing Commitments with new financing commitments, 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 through co-investment or by the financing provider(s) thereunder. from one or more additional parties, provided, that Parent and Merger Sub 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 or remedy under, or replacement of, the Debt Commitment Letter Financing Commitments, if such replacement (including through co-investment by or financing by one or more additional parties), amendment, supplement, replacement, modification or waiver (A) reduces would reasonably be expected to prevent, delay or impede in any respect the aggregate amount ability of Parent and Merger Sub to consummate the Merger or the likelihood of consummation thereof or is adverse to the interests of the cash proceeds from Company prior to the Closing in any other respect; and in any event, Parent shall disclose to the Company promptly its intention to amend, modify, supplement or replace any portion of the Financing Commitments and shall keep the Company reasonably promptly informed of the terms thereof, including providing the most recent drafts of commitment letters containing any new or modified term.
(b) Parent and Merger Sub shall use their respective reasonable best efforts to cause the lenders that are party to the Debt Commitment Letters and any other persons providing Financing to fund at or (B) imposes new or additional immediately after the Effective Time the Financing required to consummate the Merger and the other transactions contemplated by this Agreement and the Financing Commitments, if all conditions to the initial funding Financing are satisfied or otherwise expands any of waived (or will be satisfied or waived upon funding) and all the conditions to the receipt Merger in Article VII are satisfied or waived. For the avoidance of doubt, Parent shall make all funds available to Merger Sub as are required for it to perform its obligations hereunder (including with respect to the consummation of the Debt FinancingMerger and the payment of the Merger Consideration and all associated transaction costs and expenses).
(c) In the event that any portion of the Financing becomes or could become unavailable in the manner or from the sources contemplated in the Financing Commitments, (A) Parent shall promptly so notify the Company and (B) Parent and Merger Sub shall use their respective reasonable best efforts to arrange to obtain any such portion (or otherwise expands, amends or modifies any other provision lesser portion that is sufficient to consummate the Merger) from alternative sources on terms as favorable to Parent and Merger Sub as are reasonably available for financings of the type contemplated by the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full debt markets at such time as promptly as practicable following the occurrence of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Datesuch event, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the including by entering into 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 definitive agreements entered into pursuant to the Company true, complete and correct copies first sentence 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), (B6.6(c) 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 1 contract
Sources: Merger Agreement (Animal Health International, Inc.)
Financing. (a) Subject to the terms Acquiror and conditions of this Agreement, Parent Merger Sub shall use its reasonable best efforts to take, or cause to be taken, as promptly as practicable after the date hereof, all actions actions, and to do, or cause to be done, all things necessarynecessary (including to enforce Acquiror’s rights under the Subscription Agreements), advisable on or proper prior to arrange the Closing Date, to consummate the purchases contemplated by the Subscription Agreements and obtain the Debt Financing Sponsor Support Agreement, as applicable, on the terms and conditions described or contemplated therein. Unless otherwise approved 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 writing by the financing provider(s) thereunder. Parent Company (which approval shall notnot be unreasonably withheld, without the Company’s prior written consentconditioned or delayed), Acquiror shall not permit any amendment, supplement, replacement amendment or modification to be made to, any waiver (in whole or in part) of, provide consent to modify, provide any consent or agreement to terminate or elect to terminate any Subscription Agreement or any provision or remedy under, or any replacements of, any of the Subscription Agreements except for any assignment or transfer expressly permitted pursuant to any Subscription Agreement (without any further amendment, modification, waiver or consent to such assignment or transfer provision); provided, that (i) in the case of any provision undersuch permitted assignment or transfer, the Debt Commitment Letter if initial party to such Subscription Agreement remains bound by its obligations with respect thereto in the event that the transferee or assignee, as applicable, does not comply with its obligations to consummate the purchase of shares of Acquiror Common Stock subject thereto and (ii) any 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 that is solely ministerial in nature or otherwise expands immaterial, and, in each case, that does not affect any of the conditions to the receipt of the Debt Financing, economic 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 Datematerial term, 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 (providedshall not require such prior written consent, 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 Acquiror provides to the Company true, complete and correct copies no less than two (2) Business Days written notice of any such amendment, modification or replacement.
waiver. Acquiror shall (bi) 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 upon having knowledge 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 material breach or default under, or violation termination of, the Debt Commitment Letter, any Subscription Agreement (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together including any refusal or repudiation by any Subscriber with other cash and cash equivalents available respect to Parent, is sufficient its obligation and/or ability to pay all amounts required to be paid in connection with the transactions provide its full purchase price contemplated by this the applicable Subscription Agreement), and (ii) prior to delivering any written notice (or any other material notice) to a Subscriber with respect to any Subscription Agreement, (x) the proceeds of deliver 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 notice to the Company than) the conditions precedent set forth in the Debt Commitment Letterfor its prior review and comment and, other than with respect to supplement a ministerial notice or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in notice with 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 Closing or similar mechanics, for the Company. In the event any New Debt Commitment Letter is obtained’s prior consent (which consent shall not be unreasonably withheld, (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)(iiiconditioned or delayed).
(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 (Osprey Technology Acquisition Corp.)
Financing. Parent and Purchaser are not permitted to make any amendment, modification, supplement, or replacement to, or any waiver of any provision or remedy under, the Debt Commitment Letter without the consent of ▇▇▇▇▇▇▇▇▇ that (ai) Subject reduces 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 the consummation of the Offer, the Merger and the other transactions contemplated by the Merger Agreement or (B) adversely impact the ability of Parent or Purchaser to enforce its rights against the other parties to the Debt Commitment Letter or the definitive agreements with respect to the Debt Commitment Letter (the “Definitive Financing Agreements”). Parent and Purchaser 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 this Agreementthe Offer, the Merger and the other transactions, or adversely impact Parent’s or Purchaser’s ability to enforce its rights under the Debt Commitment Letter. Parent shall and Purchaser have agreed 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 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 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 notAcceptance Time, 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 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 Definitive Financing Agreements”) 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 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 contemplated by the Merger Agreement 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, (Diii) to comply on a timely basis with its (or obtain any waiver of) their covenants and obligations under set forth in, and satisfy (or obtain a waiver of) on a timely basis all conditions to the funding in, the Debt Commitment LetterLetter and the Definitive Financing Agreements, and (E) in each case, as necessary to consummate the Debt Financing at or prior transactions contemplated by the Merger Agreement and satisfy all obligations of Parent and Purchaser pursuant to the Effective TimeMerger Agreement. In the event that all conditions precedent expressly set forth contained in the Debt Commitment Letter or the Definitive Financing Agreements 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 will cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing debt providers thereunder 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 Financingrespective obligations. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt FinancingIf, 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 Effective Time, (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent or Purchaser becomes aware of any material breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Definitive 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 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. Furtherbecomes unavailable for any reason, Parent shall have the right has agreed to substitute commitments in respect of other financings for all or any portion of the Debt Financing (A) use reasonable best efforts to obtain alternative debt financing from the same and/or alternative financing or other sources so long as and which does not include any conditions to 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 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 Commitment Letter, to supplement or replace the Debt Letter and Definitive 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 effectAgreements, and (iiiB) 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 promptly notify ▇▇▇▇▇▇▇▇▇ 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 such unavailability and the transactions contemplated by this Agreementreason therefor.
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