Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Letters.
Appears in 2 contracts
Sources: Merger Agreement (Regal Rexnord Corp), Merger Agreement (Altra Industrial Motion Corp.)
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), a) Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a true, complete and correct and complete fully executed copy copies of the executed debt commitment letter, dated as of even date herewiththe Execution Date, including between Parent, Merger Sub and Barclays Bank PLC and Royal Bank of Canada and the executed fee letter associated therewith (provided that provisions in the fee letter related to fees, pricing and “flex” provisions as well as other thresholds, caps or other items but only to the extent not affecting conditionality, may be redacted (such commitment letter, together with all exhibits, schedules, annexes annexes, supplements and amendments thereto (including as modified to such letter in effect as of add additional lenders or other parties thereto) and the date of this Agreement (as may be amended or modified in accordance with the terms hereoffee letter, collectively, the “Debt Commitment LetterFinancing Commitment”) and (b) a copy of any fee letters related ), pursuant to the Debt Commitment Letter (the “Fee Letters” andwhich, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and upon the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms conditions set forth therein, Barclays Bank PLC and conditions of, the Debt Commitment Letter, the lender thereunder has committed Royal Bank of Canada have agreed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”)) for the purpose of funding the transactions contemplated by this Agreement. As of the date hereofExecution Date, neither the Debt Financing Commitment Letter nor any Fee Letter has not been amended, restated or otherwise modified or waived prior to and, as of the execution and delivery of this AgreementExecution Date, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Financing Commitment Letter have not been withdrawn, rescinded, amended, restated terminated or otherwise modified rescinded in any respect prior respect. As of the Execution Date, there are, and are contemplated to be, no other agreements, side letters or arrangements relating to the execution and delivery of this Agreement Debt Financing Commitment to which Parent or Merger Sub are a party (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities (a) as expressly set forth in a manner contemplated by the Debt Financing Commitment Letterfurnished to the Company pursuant to this Section 5.7(a) or (b) which does not impact the conditionality or aggregate amount of the Debt Financing). As of the date of this AgreementExecution Date, the Debt Financing Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation obligations of each of Parent and Merger Sub and, to the Knowledge of Parent’s knowledge, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent or other contingencies related to the Lender’s obligation to make fund the full amount of the Debt Financing available to Parent pursuant to the Debt Commitment LetterFinancing, other than as expressly set forth in the Debt Commitment LetterFinancing Commitment. Assuming the satisfaction As of the conditions Execution Date, assuming performance by the Company, the Principal Stockholders and the Stockholders’ Representatives of their obligations that are required to be performed prior to the Closing and the accuracy of the representations and warranties set forth in Section 6.01 Article 4, and 6.02Article 5, (a) the net aggregate proceeds of to be disbursed pursuant to the agreements contemplated by the Debt Financing willCommitment, in the aggregate and together with any cash or other funds available to Parent and Merger Sub’s available cash on hand, cash equivalents and marketable securities, will be sufficient (after netting out any feeson the Closing Date for Parent and Merger Sub to pay the Closing Cash Consideration and fund the Escrow Fund, original issue discount, and all related fees and expenses and similar premiums any other payment contemplated in this Agreement and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions(b) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent Merger Sub does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent and Merger Sub on the Closing Date. As of the Execution Date, no event has occurred that would result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both would become a default) by Parent or Merger Sub under the Debt Financing Commitment; provided that Parent is not making any representation or warranty regarding the effect of the inaccuracy of the representations and warranties set forth in Article 4, and Article 5 or compliance by the Company or the Stockholders (and their respective Affiliates) with their respective obligations hereunder. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect Execution Date pursuant to the Debt Financing (none Commitment. The obligations of which reduces Parent and Merger Sub hereunder are not subject to any conditions regarding the amount ability of Parent and Merger Sub to obtain financing for the consummation of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating transactions contemplated hereby. Parent acknowledges that obtaining financing is not a condition to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersClosing.
Appears in 2 contracts
Sources: Merger Agreement (GXS Worldwide, Inc.), Merger Agreement (Open Text Corp)
Financing. At (a) The aggregate amount of funds contemplated to be provided pursuant to the ClosingFinancing Letters (as defined below), assuming the funding of the Debt Financing in accordance together with the Debt Commitment Letter cash on hand of Parent and after giving effect its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any “flex” provision in other repayment or refinancing of Indebtedness contemplated by the Debt Commitment Letter or the related fee letters Financing Letters; (including with respect to ii) pay any and all fees and original issue discount), Parent will have immediately available funds in an amount as is necessary expenses required to consummate the Transactions, including the payment be paid by Parent, Merger Sub and the Surviving Corporation in connection with the Merger and the Financing; and (iii) satisfy all of the aggregate amount other payment obligations of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or and the Surviving Corporation contemplated hereunder.
(b) Parent and any other amounts, including Indebtedness of Merger Sub have delivered to the Company a true, correct and its Subsidiaries, required to be paid in connection with, or as a result of, complete copy of (i) the consummation of the Transactions executed commitment letter (the “Required AmountEquity Financing Letter”). As , dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ has delivered to the Company ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Equity Financing Letter, the “Financing Letters”) (), pursuant to which may be redacted to remove the fee amountslenders party thereto have committed, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions ofthereof, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has Financing Letters have not been amended, restated amended or otherwise modified or waived prior to the execution and delivery none of this Agreement, no amendment, restatement or other modification is contemplated and the respective obligations and commitments contained in the Debt Commitment Letter Financing Letters have not been withdrawn, rescinded, amended, restated withdrawn or otherwise modified rescinded in any respect prior respect. The Financing Letters, in the form so delivered to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of Company on the date of this Agreementhereof, the Debt Commitment Letter is are in full force and effect and constitutes as of the date hereof. The Financing Letters are (i) legal, valid and binding obligation obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) enforceable in accordance with their respective terms against Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent andeach case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Knowledge of Parent, each Fee Letter contain all of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation obligations of the parties thereunder to make the Debt Financing available to Parent pursuant on the terms therein and there are no other conditions precedent or other contingencies related to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction funding of the conditions set forth in Section 6.01 and 6.02, the net proceeds full amount of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required AmountFinancing. As of the date of this Agreement, (i) no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent oror Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto thereto, under the Financing Letters or that makes any term or condition of the Debt Commitment Letterassumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and (ii) assuming subject to the satisfaction or waiver of the conditions set forth in Section 6.01 Article VI and Section 6.02 and taking into account the Marketing Periodperformance by the Company of its obligations under this Agreement, neither Parent does not have nor Merger Sub has any reason to believe that any of the conditions to the Debt Financing contemplated in the Financing Letters will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be made available to Parent on and Merger Sub at or prior to the Closing Date. Parent has and Merger Sub have fully paid (paid, or caused to be fully paid) , any and all commitment fees or other fees to the extent required to be paid which are due and payable on or prior to the date hereof pursuant to the terms of this Agreement in connection with the Debt FinancingFinancing Letters. Except for Other than the Fee Letters Letter and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financingas set forth in Schedule 3.10(c), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter Contracts to which Parent or any of its Affiliates is a partyparty related to the funding or investing, as applicable, of the full amount of the Financing other than as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 2 contracts
Sources: Merger Agreement (Valley Telephone Co., LLC), Merger Agreement (Knology Inc)
Financing. At Assuming the Closing, assuming the funding accuracy of the Debt Financing representations and warranties set forth in accordance Article IV, and assuming no material breach by Knight of its obligations under Sections 6.1 and 6.2 or by Blocker of its obligations under Section 6.5, the amount of funds contemplated to be provided pursuant to the Commitment Letters (as defined below), if funded, together with cash and cash equivalents of GETCO, Knight and the Debt Company available for application to the cash portion of the Merger Consideration and the Refinancing, are sufficient, to (i) consummate the Mergers and the Refinancing and any other repayment or refinancing of indebtedness contemplated by this Agreement or the Commitment Letter and after giving effect to any “flex” provision in (ii) satisfy all of the Debt other payment obligations of GETCO contemplated hereunder and under the Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”)Fee Letter. As of the date hereof, ▇▇▇▇▇▇ GETCO has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments Knight prior to such letter in effect as of the date of this the Original Merger Agreement copies of a fully executed (as may be amended or modified in accordance with the terms hereofi) debt commitment letter dated December 19, 2012 between Jefferies Finance LLC (“Jefferies Finance”) and GETCO (the “Debt Commitment Letter”), (ii) debt fee letter dated December 19, 2012 between Jefferies Finance and (b) a copy of any fee letters related to the Debt Commitment Letter GETCO (the “Fee LettersLetter” and, together with the Debt Commitment Letter, the “Debt Financing Letters”) and (which may be redacted to remove iii) the fee amountsequity commitment letter dated December 19, economic terms 2012 between GETCO and General Atlantic Partners 83, L.P. (the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, Equity Commitment Letter”; together with the Debt Commitment Letter, the lender thereunder has “Commitment Letters” and, together with the Debt Financing Letters, the “Financing Letters”), pursuant to the terms, but subject to the conditions, of which financial institutions party thereto, including Jefferies Finance (the “Lenders”), in the case of the Debt Commitment Letter, and General Atlantic Partners 83, L.P., in the case of the Equity Commitment Letter, have committed to lend provide the Company with financing in the amounts set forth therein for purposes of financing the purposes set forth in transactions contemplated by this Agreement, paying related fees and expenses and completing the Refinancing (such debt financing, pursuant to the Debt Commitment Letter (Letter, as it may be modified, to the extent permitted by this Agreement, the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior ” and such equity financing pursuant to the execution and delivery of this AgreementEquity Commitment Letter, no amendmentas it may be modified, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated extent permitted by the Debt Commitment Letter). As of the date of this Agreement, the “Equity Financing” and, together with the Debt Commitment Letter is Financing, the “Financing”); provided, however, that, in the case of the Fee Letter, accurate and complete copies have been delivered to Knight with only the fee amounts, certain terms of “market flex” and the “Securities Demand” provisions redacted. The Financing Letters, in the form provided to Knight by GETCO, are in full force and effect and constitutes the are legal, valid valid, binding and binding obligation enforceable obligations of Parent GETCO and, to the Knowledge knowledge of ParentGETCO, each of the other parties thereto, enforceable thereto in accordance with its their respective terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, and subject to the Bankruptcy and Equity Exception. As of the date of the Original Merger Agreement, the Financing Letters have not been withdrawn, terminated, repudiated, rescinded, amended or modified, in any respect, and no withdrawal, termination, repudiation, rescission, amendment or modification of the Financing Letters is contemplated. There are no conditions precedent or other contingencies relating to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected party to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions Financing Letters to fund the Debt Financing will not be satisfied or that the Debt Financing full amount (or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paidportion) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersLetters as in effect on the date of the Original Merger Agreement. GETCO has paid all fees and expenses required to be paid under the Financing Letters as of the date of the Original Merger Agreement. As of the date of the Original Merger Agreement, GETCO has no knowledge of any fact, occurrence or condition that makes any of the assumptions or statements set forth in the Commitment Letters inaccurate in any material respect or that would cause the Commitment Letters to be terminated or ineffective or, assuming satisfaction of the conditions precedent set forth in Section 8.1 and 8.3, that would reasonably be expected to cause any of the conditions precedent set forth therein not to be met. In no event shall the receipt or availability of any funds or financing (including, for the avoidance of doubt, the Financing) by GETCO or any of its respective Affiliates or any other financing be a condition to any of GETCO’s obligations hereunder.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (KCG Holdings, Inc.), Agreement and Plan of Merger (Knight Capital Group, Inc.)
Financing. At Parent has delivered to the ClosingCompany true and complete copies of: (i) the executed commitment letter, assuming the funding dated as of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount)August 4, Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by 2011 between Parent, Merger Sub and the Surviving Corporation Bank of the aggregate amount of the Merger ConsiderationAmerica, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock OptionsN.A., Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ has delivered to ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Barclays Bank PLC, Barclays Capital, the Company investment banking division of Barclays Bank, Citigroup Global Markets Inc., Credit Suisse AG, Credit Suisse Securities (aUSA) a correct LLC, JPMorgan Chase Bank, N.A. and complete fully executed copy ▇.▇. ▇▇▇▇▇▇ Securities LLC (collectively, the “Debt Financing Sources”) and excerpts of those portions of the debt Fee Letter and any other executed fee letter and engagement letter associated therewith that contain any conditions to funding or “flex” provisions or other provisions (excluding provisions related solely to fees and economic terms (other than covenants) agreed to by the parties) regarding the terms and conditions of the financing to be provided by such commitment letter (such commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to thereto and each such fee letter in effect as of the date of this Agreement and engagement letter, collectively, (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment LetterFinancing Commitment”) and (b) a copy of any fee letters related ), pursuant to the Debt Commitment Letter (the “Fee Letters” andwhich, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and upon the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions ofset forth therein, the Debt Commitment Letter, the lender thereunder has committed Financing Sources have agreed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”) for the purpose of funding the Transactions; (ii) the executed equity commitment letter, dated as of August 4, 2011 among Sophia Holding I and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Capital Partners VI, L.P. and the other parties thereto (collectively, the “Investors”) (the “Transaction Equity Financing Commitment” and together with the Debt Financing Commitment, the “Transaction Financing Commitments”), pursuant to which, upon the terms and subject to the conditions set forth therein, each of the Investors has committed to invest the cash amount set forth therein (the “Transaction Equity Financing” and together with the Debt Financing, the “Transaction Financing”); and (iii) the executed equity commitment letter, dated as of August 4, 2011 among Datatel and the Investors (the “Termination Fee Equity Financing Commitment” and together with the Transaction Financing Commitments, the “Financing Commitments”), pursuant to which, upon the terms and subject to the conditions set forth therein, each of the Investors has committed to invest the cash amount set forth therein (the “Termination Fee Equity Financing” and together with the Transaction Financing, the “Financing”). None of the Financing Commitments have been amended or modified prior to the date of this Agreement, and, as of the date hereof, the respective commitments contained in the Financing Commitments have not been withdrawn, terminated or rescinded in any respect. As of the date hereof, neither there are no other agreements, side letters or arrangements to which Parent or Merger Sub is a party relating to any of the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to Financing Commitments that could affect the execution and delivery availability of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter)Financing. As of the date of this Agreementhereof, the Debt Commitment Letter is Financing Commitments are in full force and effect and constitutes constitute the legal, valid and binding obligation obligations of each of Parent and, to the Knowledge knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent related to the obligation to make funding of the Debt full net proceeds of the Financing available to Parent pursuant to the Debt Commitment Letter, (including any “market flex” provisions) other than as expressly set forth in the Debt Commitment LetterFinancing Commitments. Assuming the satisfaction of the conditions set forth in Section 6.01 8.3(a) and 6.02Section 8.3(b), or Section 8.3(a) and Section 8.3(b) of the Asset Purchase Agreement, as applicable, the net aggregate proceeds of to be disbursed pursuant to the Debt agreements contemplated by the Transaction Financing willCommitments, in the aggregate and together with any the available cash, cash or other funds available to equivalents and marketable securities of Datatel and its Subsidiaries, will be sufficient for Parent and the Surviving Corporation to pay the Merger SubConsideration, Purchaser Company to pay the Purchase Price, Datatel and each of its Subsidiaries to refinance their outstanding Indebtedness that is required by its terms to be sufficient refinanced in connection with the consummation of the Transactions and the Datatel Entities and their respective Subsidiaries to pay the fees and expenses of the Datatel Entities and the SunGard Entities (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect extent reimbursable under Section 7.15) related to the maximum amount of any “flex” provisions) for the payment of the Required Amountforegoing. As of the date of this Agreementhereof, (i) no event has occurred which, which would result in any breach or violation of or constitute a default (or an event which with notice or without notice, lapse of time or both, both would reasonably be expected to constitute become a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of default) by Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment LetterFinancing Commitments, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have neither Sophia Holding I nor Datatel has any reason to believe that any of the conditions to any of the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent Sophia Holding I or Datatel, as applicable, on the date of the Applicable Closing Dateor, in the case of the Termination Fee Equity Financing, on the date the Parent Termination Fee is payable in accordance with Section 9.2(b). Parent has The Datatel Entities have fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date hereof pursuant to the Financing Commitments. Except as otherwise contemplated by Section 9.4, the obligations of the Datatel Entities under this Agreement in connection with and the Debt Financing. Except Asset Purchase Agreement are not subject to any conditions regarding their ability to obtain financing for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersTransactions.
Appears in 2 contracts
Sources: Merger Agreement (Sungard Capital Corp Ii), Merger Agreement (GL Trade Overseas, Inc.)
Financing. At (a) Parent understands and acknowledges that the Closingobligations of the Parent and Merger Sub to consummate the Transactions are not in any way contingent upon or otherwise subject to the Parent’s consummation of any financing arrangement, assuming the Parent’s obtaining of any financing or the availability, grant, provision or extension of any financing to the Parent.
(b) Parent has delivered to the Company true, complete and correct copies of (i)
(1) the fully executed commitment letter, dated as of the date hereof (including all exhibits, annexes, schedules and term sheets attached thereto, the “OpCo Debt Commitment Letter”), among Credit Suisse AG, Credit Suisse Loan Funding LLC and Parent, pursuant to which the Parent Financing Sources party thereto have agreed, on the terms and subject to the conditions set forth therein, to provide Parent with debt financing in the amounts set forth therein, the proceeds of which are to be used to fund the Transactions and fees in connection with such debt financing (the “OpCo Debt Financing”), (2) the fully executed warehouse facility commitment letter, dated as of the date hereof (including all exhibits, annexes, schedules and term sheets attached thereto, the “AssetCo Debt Commitment Letter” and, together with the OpCo Debt Commitment Letter, the “Debt Commitment Letters”; the Debt Commitment Letters together with the Equity Commitment Letter, the “Financing Commitment Letters”), between Credit Suisse AG, Cayman Islands Branch and the Parent, pursuant to which the Parent Financing Sources party thereto have agreed, on the terms and subject to the conditions set forth therein, to provide Parent with debt financing in the amounts set forth therein, the proceeds of which are to be used to fund the Transactions (the “AssetCo Debt Financing” and, together with the OpCo Debt Financing, the “Debt Financing”; the Debt Financing, together with the Equity Financing, the “Financing”), and (3) the fully executed fee letters relating to each of the Debt Commitment Letters; provided that the fee amounts, flex provisions and other economic terms (other than any such term that would (x) reduce the aggregate amount of the Debt Financing or (y) impose any additional conditions or other contingencies (or otherwise amend, modify or expand any conditions or other contingencies in a manner adverse to Parent) or adversely affect the availability or timing of the funding of the Debt Financing) may be redacted in a customary manner; and (ii) the Equity Commitment Letter, which provides, and shall continue to provide, that the Company is a third party beneficiary thereto with respect to the provisions specified therein.
(c) As of the date hereof, each of the Financing Commitment Letters is in full force and effect and is a legal, valid, binding and enforceable obligation of Parent (to the extent party thereto) and, to the Knowledge of Parent, the other parties thereto, in each case subject to the Enforceability Exceptions. Assuming due and valid execution by each other party thereto (in the case of the Debt Commitment Letters only), each of the Financing Commitment Letters is enforceable against the parties thereto in accordance with its terms, subject to the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”)Enforceability Exceptions. As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy none of the debt commitment letterFinancing Commitment Letters have been amended, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended supplemented or modified in accordance with the terms hereofany respect, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter therein have not been withdrawn, rescindedterminated, amended, restated rescinded or otherwise modified in any respect prior respect, nor, to Parent’s Knowledge, is any such amendment, supplement, modification, withdrawal, termination or rescission currently contemplated or the execution and delivery subject of this Agreement discussions (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities who had not executed a Debt Commitment Letter as of the date hereof, in a manner each case, as contemplated by and in accordance with such Debt Commitment Letter; provided, however, that (i) any such added lender, lead arranger, bookrunner, syndication agent or other similar entity is a Qualified Bank, and (ii) in no event shall the addition of any such lender, lead arranger, bookrunner, syndication agent or other similar entity reduce the aggregate amount of the Debt Financing to be funded on the Closing Date (including by increasing the amount of fees to be paid or original issue discount) from that contemplated in the Debt Commitment LetterLetters (unless, in each case, the amount of the Equity Financing has been increased by a corresponding amount, or the Company has given its prior written consent thereto)). As of the date of this Agreementhereof, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or material breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of the Parent, any other parties party thereto under any Financing Commitment Letter. As of the date hereof, Parent is not aware of any fact, event or other occurrence that makes any of the representations and warranties of Parent in any Financing Commitment Letter inaccurate in any material respect. There are no conditions precedent or other contingencies directly or indirectly related to the funding of the full amount of the Financing (including any flex provisions) other than the conditions precedent set forth in the Financing Commitment Letters and, as of the date hereof, Parent has no reason to believe that it will not be able to satisfy any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver closing of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason Financing that is required to believe that any be satisfied as a condition of the conditions to Financing, or that the Debt full amount of the Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be made available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to Other than the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereofCommitment Letters, there are no side letters or other agreementsContracts, contracts arrangements or arrangements of any kind understandings (written or oral) directly or indirectly related to the Financing (except for customary fee letters, engagement letters relating to the Debt Financing and non-disclosure agreements, none of which impact the conditionality, timing or amount of the Financing) which could adversely impact the timing or availability of the Financing, including without limitation, by providing for additional or different conditions to the timing or availability of the Financing not otherwise contained in the Financing Commitment Letter Letters. There is no condition to the Financing the satisfaction of which would prevent the satisfaction of the conditions set forth in Sections 6.1, 6.2, and 6.3 hereof, and there is no condition set forth in Sections 6.1, 6.2, or 6.3 hereof the satisfaction of which would prevent the satisfaction of a condition to the Financing. Upon the funding of the Financing in accordance with and subject to its terms and conditions (including after giving effect to any pricing flex that results in OID, if exercised), the aggregate proceeds of the Financing, together with other unrestricted cash and cash equivalents on hand of Parent on the Closing Date, are, and will be, in an amount sufficient to (i) consummate the Closing upon the terms contemplated by this Agreement, (ii) pay all other amounts payable by Parent or its Affiliates pursuant to the other Ancillary Agreements to which Parent or any of its Affiliates such Person is a party, (iii) pay all related fees and expenses of Parent and its Affiliates and Representatives, and (iv) to the extent any other than amounts are required to be paid by the Parent on the Closing Date to consummate the Transactions, pay all such other amounts (including refinancing or repayment of any debt contemplated by this Agreement). As of the date hereof, Parent or its Affiliates have fully paid, or caused to be paid, any and all commitment fees and any and all other fees and expenses, in each case as expressly set forth in are required to be paid on or before the date hereof pursuant to the terms of the Financing Commitment Letters.
Appears in 2 contracts
Sources: Merger Agreement (Icahn Enterprises Holdings L.P.), Merger Agreement (American Railcar Industries, Inc.)
Financing. At (a) TopCo Parent has delivered to the ClosingCompany a true, assuming complete and correct copy of a fully executed senior debt facility amendment agreement, together with any related fee letters (in the case of the fee letters, redacted only for provisions related to fee amounts and other economic terms, none of which would reasonably be expected to adversely affect the availability of the Debt Financing, relate to the termination or conditionality of, or contain any non-economic conditions precedent to, the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of reduce the aggregate amount of the Merger ConsiderationDebt Financing below the amount, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Optionstogether with the Equity Financing, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness cash of the Company and its Subsidiaries, required necessary to be paid pay the Merger Amounts, in connection witheach case, or on the Closing Date), dated as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ by and between the Financing Sources party thereto and TopCo Parent providing for debt financing as described therein (together, including all exhibits, schedules and annexes, as may be amended, restated, supplemented or replaced, in each case, in accordance with Section 7.05, the “Debt Letters”), pursuant to which, upon the terms and subject only to the conditions set forth therein, the Debt Financing Sources party thereto have agreed to lend the amounts set forth therein on the Closing Date (the “Debt Financing”).
(b) TopCo Parent has delivered to the Company (a) a true, complete and correct and complete copy of a fully executed copy of the debt commitment letterequity placing agreement, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement hereof, by and among Canaccord Genuity Limited (the “Bookrunner”) and TopCo Parent, and a Bookrunner book building confirmation letter confirming that TopCo Parent has demand from its equity investors for equity financing for no less than $100 million (each as may be amended amended, restated, supplemented or modified replaced, in each case, in accordance with the terms hereofSection 7.05, together the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Equity Letters” and, together with the Debt Commitment LetterLetters, the “Financing Letters”) (which may be redacted pursuant to remove the fee amountswhich, economic terms and upon the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions ofset forth therein, TopCo Parent is positioned to receive the Debt Commitment Letter, the lender thereunder has committed to lend the amounts amount set forth therein for on the purposes set forth in such Debt Commitment Letter Closing Date (the “Equity Financing” and together with the Debt Financing, the “Financing”). Members of TopCo Parent’s Board of Directors holding together not less than thirty percent (30%) of TopCo Parent’s outstanding ordinary shares as of the date hereof, have agreed, pursuant to legally binding undertakings to TopCo Parent, to vote all of their respective holdings of TopCo Parent’s ordinary shares in favor of the Pre-Emptive Rights Waiver.
(c) As of the date hereof, neither the Financing Letters (and, as to the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this AgreementLetters, the Debt Commitment Letter is underlying senior debt facility amended thereby) are in full force and effect and constitutes constitute the legalvalid, valid binding and binding obligation enforceable obligations of Parent TopCo Parent, the Bookrunner and, to the Knowledge knowledge of TopCo Parent, each of the other parties thereto, enforceable in accordance with its their terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, (subject to the Bankruptcy effect of any applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Applicable Laws relating to or affecting creditors’ rights generally and Equity Exception. There are no conditions precedent subject to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth effect of general principles of equity (regardless of whether considered in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth a Proceeding at law or in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amountequity)). As of the date hereof, there are no conditions precedent or subsequent related to the funding of this Agreementthe full amount of the Financing contemplated by the Financing Letters, other than the conditions precedent set forth in the Financing Letters (such conditions precedent, the “Financing Conditions”).
(d) As of the date hereof, the Financing Letters have not been amended, waived, supplemented or modified in any manner, and the respective commitments contained therein have not been terminated, reduced, withdrawn or rescinded in any respect by TopCo Parent, or, to the knowledge of TopCo Parent, any other party thereto, and no such termination, reduction, withdrawal or rescission is contemplated by TopCo Parent or, to the knowledge of TopCo Parent, any other party thereto (except for amendments to add additional Financing Sources thereto).
(e) As of the date hereof, assuming that the conditions to the obligation of Parent and Merger Sub to consummate the Offer and the Merger have been satisfied or waived, then TopCo Parent has no reason to believe that (i) any of the Financing Conditions will not be satisfied on or prior to the Closing Date or (ii) the Financing contemplated by the Financing Letters will not be available to TopCo Parent on the Closing Date or at any time thereafter.
(f) As of the date hereof, TopCo Parent is not in default or breach under the terms and conditions of either of the Financing Letters (and, as to the Debt Letters, the underlying senior debt facility amended thereby) and no event has occurred whichthat, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedentunder the terms and conditions of the Financing Letters (and, as to the Debt Letters, the underlying senior debt facility amended thereby), in each case, on by TopCo Parent.
(g) As of the part of Parent ordate hereof, there are no side letters, understandings or other agreements or arrangements relating to the Knowledge of Financing Letters or the Financing to which TopCo Parent, any other parties thereto under or its Affiliates is a party that would reasonably be expected to adversely affect the availability of the Financing, add any term or condition that would have the effect of materially reducing the aggregate amount available under the Financing, add any term or condition that would prevent the closing of the Debt Commitment LetterFinancing or that would substantially delay the Closing or would reasonably be expected to adversely affect the Financing contemplated by the Financing Letters in any respect, and (ii) assuming the satisfaction or waiver of the conditions other than those set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Financing Letters.
(h) TopCo Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent an Affiliate thereof on the Closing Date. Parent its behalf has fully paid (or caused to be paid) any and all commitment fees or other fees to and amounts required by the extent required Financing Letters to be paid on or prior to the date hereof. TopCo Parent or an Affiliate thereof on its behalf will fully pay when due any and all commitment or other fees and amounts required by the Financing Letters to be paid on or prior to the Closing Date.
(i) None of this Agreement (1) the execution, delivery or performance of the Financing Letters, (2) the borrowing of money nor granting of Liens under the Financing, or (3) any action (including any internal reorganization, designation of Subsidiaries as “unrestricted subsidiaries,” any investment in any Subsidiary or unrestricted Subsidiary and any restricted payment necessary to have cash available to pay the Merger Amounts and consummate the Contemplated Transactions), in each case, that is required to satisfy the conditions precedent under the Financing Letters conflicts with, constitutes a default under or requires consent of any Person under any credit agreement, note purchase agreement, indenture or other Contract with respect to indebtedness for borrowed money to which TopCo Parent or any Subsidiary of TopCo Parent is a party or by which any of their respective properties or assets is bound, except to the extent required by the underlying senior debt facility amended by the Debt Letters.
(j) Assuming the funding of the Financing in accordance with the Financing Letters, TopCo Parent will have at and as of the Closing Date sufficient available funds, including all available funds of TopCo Parent, the Company and their respective Subsidiaries, to cause Parent and Merger Sub, as the case may be, to consummate the Offer and the Merger and to make all payments required to be made in connection therewith, including the payment of the aggregate amount required to be paid for all shares of the Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer, the payment of the aggregate Merger Consideration, any payments made in respect of equity compensation obligations to be paid in connection with the Debt Financing. Except for Contemplated Transactions, the Fee Letters and customary engagement letters payment of any debt under the Existing Company Credit Agreement required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with respect to the Debt Financing Merger (none of which reduces the amount including all indebtedness of the Debt Financing below Company and its Subsidiaries under the Required Amount Existing Company Credit Agreement required to be repaid, redeemed, retired, cancelled, terminated or adversely affects otherwise satisfied or discharged in connection with the conditionality, enforceability, termination or availability Merger and the other transactions contemplated hereby) and all premiums and fees required to be paid in connection therewith and all other amounts to be paid pursuant to this Agreement and all associated costs and expenses of the Debt FinancingOffer and the Merger (such amounts, collectively, the “Merger Amounts”), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Letters.
Appears in 2 contracts
Sources: Merger Agreement (Ig Design Group Americas, Inc.), Merger Agreement (CSS Industries Inc)
Financing. At (a) Amneal has delivered to Impax a true, correct and complete copy of (i) an executed commitment letter (including all exhibits and schedules thereto, the Closing“Debt Commitment Letter”) pursuant to which the Debt Financing Sources party thereto have agreed (on the terms and subject to the conditions thereof), to lend the amounts set forth therein (the “Debt Financing Commitments”) and (ii) the fee letter(s) referenced in the Debt Commitment Letter (the “Fee Letter”). As of the date of this Agreement, there are no agreements, side letters or arrangements (other than the Debt Commitment Letter and the Fee Letter) to which Amneal is a party relating to any of the Debt Financing Commitments.
(b) Except as expressly set forth in the Debt Commitment Letter and the Fee Letter, as of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02, there are no conditions precedent to the funding of the full amount of the Debt Financing. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 and the funding of the Debt Financing in accordance with the Debt Commitment Letter terms and after giving effect to any “flex” provision in conditions of the Debt Commitment Letter or Letter, the related fee letters aggregate proceeds contemplated by the Debt Commitment Letter, together with other financial resources of Amneal will be sufficient for (including with respect i) the repayment in full of all amounts outstanding under the Existing Credit Facilities of Impax and its Subsidiaries pursuant to fees and original issue discount)their terms, Parent will have immediately available funds in an amount as is necessary (ii) to consummate the Transactionsextent necessary, including for the payment by Parent, Merger Sub and the Surviving Corporation repurchase of the aggregate amount Impax Convertible Notes at par plus accrued but unpaid interest thereon and (iii) the satisfaction of the Merger Consideration, other amounts payable pursuant Amneal’s obligations to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), pay any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid Amneal in connection with, or as a result ofwith this Agreement, the consummation of Transactions and the Ancillary Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is and the Fee Letter are in full force and effect effect, and constitutes constitute the legal, valid and binding obligation of Parent Amneal and, to the Knowledge of ParentAmneal, each of the other parties theretothereto (subject in each case to applicable bankruptcy, enforceable insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity whether considered in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth a proceeding in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash equity or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amountat law). As of the date of this Agreement, Amneal is not in breach of any of the terms or conditions set forth in the Debt Commitment Letter or the Fee Letter. As of the date of this Agreement, assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 and the accuracy of the representations and warranties of Impax set forth in this Agreement in all material respects, (i) no event has occurred whichthat, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to Amneal under the Knowledge of Parent, any other parties thereto under any term or condition terms of the Debt Commitment Letter, and Letter or (ii) assuming the satisfaction or waiver of the conditions set forth would reasonably be expected to result in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to within its control in the Debt Financing will Commitment Letter not be being satisfied or that the Debt Financing or in a timely manner. Amneal has paid in full any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) and all commitment fees or other fees to the extent required to be paid pursuant to the terms of the Debt Commitment Letter or Fee Letter on or prior to before the date of this Agreement. The Debt Commitment Letter has not been modified or amended as of the date of this Agreement, and as of the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to respective commitments under the Debt Commitment Letter have been reduced, withdrawn or rescinded by Amneal or, to which Parent or any of its Affiliates is a partyAmneal’s Knowledge, other than as expressly the Debt Financing Sources party thereto. Notwithstanding anything to the contrary set forth in this Section 4.25(b), to the Financing Lettersextent that the representations and warranties contained in this Section 4.25(b), are not true or correct in any respect, but all other conditions set forth in Section 7.01 and Section 7.02(a) are then satisfied and Amneal is otherwise is ready, willing and able to consummate the Transactions, then the representations and warranties set forth in this Section 4.25(b) shall be deemed to be true and correct in all respects in order to deem the condition set forth in Section 7.02(a) satisfied, so long as the Closing occurs.
(c) The obligations of Amneal under this Agreement are not subject to any conditions regarding Amneal’s, its Affiliates’ or any other person’s ability to obtain financing for the consummation of the Transactions contemplated hereby.
Appears in 2 contracts
Sources: Business Combination Agreement (Atlas Holdings, Inc.), Business Combination Agreement (Impax Laboratories Inc)
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a A true, complete and correct and complete fully executed copy of the debt commitment letter, dated as of even date herewithAugust 24, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement 2017 (as may be amended or modified replaced, in accordance with each case subject to the terms hereofof Section 5.14(a), the “Debt Commitment Letter”) and as in effect on the date hereof has been provided to Seller.
(b) a A true, complete and correct copy of any the investment agreement between Buyer, CD&R Boulder Holdings, L.P. and ▇▇▇▇▇▇▇, Dubilier & Rice Fund IX, L.P., dated August 24, 2017 (as may be amended or replaced, in each case subject to the terms of Section 5.14(a), the “Equity Commitment Letter”) as in effect on the date hereof has been provided to Seller.
(c) A true and complete copy of each fee letters letter related to the Debt Commitment Letter (Letters as in effect on the “Fee Letters” anddate hereof has been provided to Seller, together with except for customary redactions solely in respect of the Debt Commitment Letteramounts, percentages and basis points of compensation and other similar economics set forth therein, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms pricing and the other terms of any the “flex” provisions that are customarily redacted in transactions of this type, and the “securities demand” provisions set forth therein (none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect would impact the conditionality, enforceability, termination enforceability or availability of the Debt aggregate amount of the Financing). Pursuant to, .
(d) Buyer has fully paid any and subject all commitment fees or other fees required by the Commitment Letters to be paid on or before the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”)date hereof. As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the a legal, valid and binding obligation of Parent each of the Buyer Companies party thereto and, to the Knowledge of ParentBuyer, each other party thereto, and in full force and effect, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and by general principles of equity. As of the other parties theretodate hereof, enforceable (i) neither Commitment Letter has been amended or modified in accordance with its terms against Parent any respect and has not been withdrawn, terminated or rescinded (or the commitments therein otherwise reduced) in any respect and, to the Knowledge of ParentBuyer, each no withdrawal, termination or rescission or reduction is contemplated, and (ii) no Buyer Company is in default under the terms and conditions of any Commitment Letter and no event has occurred which (with or without notice, lapse of time or both) would reasonably be expected to constitute a breach thereunder on the part of a Buyer Company party or, to the Knowledge of Buyer, any other party thereto and no Buyer Company has received any written notice of such default or event. As of the date hereof, no amendment or modification of any Commitment Letter is contemplated (other parties theretothan joinder documentation or an amendment and restatement of a Commitment Letter, subject in each case relating to addition of additional equity investors in respect of the Bankruptcy and Equity Exception. There are no conditions precedent to Financing or the obligation to make appointment of additional agents, co-agents, arrangers, bookrunners, managers or other roles in respect of the Debt Financing available or modifications thereto to Parent pursuant to implement the Debt Commitment Letter, other than as expressly flex provisions set forth in any fee letter related thereto, none of which would impact the Debt Commitment Letter. conditionality, enforceability or availability of the aggregate amount of the Financing).
(e) Assuming the satisfaction of the conditions set forth in Section 6.01 6.1 and 6.02Section 6.2, the net aggregate proceeds contemplated to be provided by the Commitment Letters, together with available cash of the Debt Financing willBuyer Companies, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, will be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant for Buyer to make all required payments in connection with the Financing Letterstransactions contemplated hereby, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As Purchase Price, and all other amounts to be paid pursuant to this Agreement and associated fees, costs and expenses of the date of this Agreementtransactions contemplated hereby, (i) no event has occurred whichincluding the Financing, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid .
(or caused to be paidf) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Commitment Letters and customary engagement fee letters with respect referred to in the Debt Financing Commitment Letters (none copies of which reduces have been provided to Seller in accordance with the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financingforegoing), as of the date hereof, (i) there are no side letters or other agreements, contracts or arrangements of any kind agreements relating to the Debt conditions of the funding or investing, as applicable, of the financing contemplated by the Commitment Letter Letters other than any engagement letter and fee credit letters, and (ii) there are no conditions precedent or other contingencies (including pursuant to which Parent any “market flex” provisions in the related fee letters or otherwise) related to the funding of the full amount of the Financing or any provisions that could reduce the aggregate amount of its Affiliates is a party, other than as expressly the Financing set forth in the Commitment Letters or the aggregate proceeds contemplated by the Commitment Letters. Assuming the satisfaction of the conditions precedent in Section 6.1 and Section 6.2, as of the date hereof, to the Knowledge of Buyer, there are no facts or circumstances that would reasonably be expected to result in any of the conditions to the Financing Lettersnot being satisfied on a timely basis or that would cause the full amount of the Financing to not be available to the Buyer Companies on the date on which the Closing should occur pursuant to Section 2.3.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Beacon Roofing Supply Inc)
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ a) IDB Buyer has delivered to the Company (a) a Seller true, correct and complete copies of the fully executed copy of the (i) amended and restated debt commitment letterletter between Jefferies Finance LLC (collectively with the other lenders party thereto on December 2, 2014, the "Lenders"), and GFI Holdco Inc., a Delaware corporation and indirect parent of IDB Buyer, dated as of even date herewithDecember 2, 2014, including all exhibits, schedules, term sheets, annexes and amendments to such letter thereto, all in effect as of December 2, 2014 (the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt "Commitment Letter”") and (bii) a copy of any amended and restated fee letters related to letter referenced in the Debt Commitment Letter (the “"Fee Letters” andLetter") in effect as of December 2, together with 2014 (the Commitment Letter and such Fee Letter, collectively, the "Debt Commitment Letter"), the “Financing Letters”) (which may be redacted pursuant to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant towhich, and subject to the terms and conditions ofthereof, the Debt Commitment Letter, the lender thereunder has Lenders have committed to lend the amounts set forth therein to IDB Buyer for the purpose of funding the transactions contemplated by this Agreement, to pay expenses to be paid by IDB Buyer relating to the Transactions and for the other purposes set forth therein (the "Debt Financing"); provided, however, that solely in such the case of the Fee Letter, true, correct and complete copies have been delivered to Seller redacted in a manner that is usual and customary for transactions of this type.
(b) The Debt Commitment Letter, in the form provided to Seller by IDB Buyer, is, or in the case of a Debt Commitment Letter entered into after the date of this Agreement (the “Debt Financing”). As of but if entered into after the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior only to the execution and delivery of this Agreementextent entered into in compliance with Section 5.16(d)) will be, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes is, or in the case of a Debt Commitment Letter entered into after the date of this Agreement will be, legal, valid and binding obligation obligations of Parent andIDB Buyer and its Affiliates party thereto, and to the Knowledge of ParentIDB Buyer, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amounttheir respective terms. As of the date of this Agreement, no Debt Commitment Letter or any commitment thereunder has been withdrawn, terminated, repudiated, rescinded, waived, amended, restated, supplemented or modified in any respect, orally or in writing, and as of the date of this Agreement no such withdrawal, termination, repudiation, rescission, waiver, amendment, restatement, supplement or modification is contemplated by IDB Buyer or any of its Affiliates, or to the Knowledge of IDB Buyer, any other counterparty thereto.
(ic) As of the date of this Agreement, neither IDB Buyer nor any of its Affiliates nor, to the Knowledge of IDB Buyer, any other counterparty thereto has committed any breach of any of its covenants or other obligations set forth in, or is in default under, the Debt Commitment Letter, and to the Knowledge of IDB Buyer no event has occurred whichor circumstance exists that, with or without notice, lapse of time or both, would or would reasonably be expected to (i) constitute or result in a breach or default under the Debt Commitment Letter on the part of IDB Buyer or breach any other party to the Debt Commitment Letter, (ii) constitute or result in a failure to satisfy a condition precedent, precedent or other contingency set forth in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (iii) make any of the assumptions or any of the statements set forth in the Debt Commitment Letter inaccurate in any material respect or (iv) otherwise result in any portion of the Debt Financing not being available. As of the date of this Agreement, IDB Buyer has not received any notice or other communication from any party to the Debt Commitment Letter with respect to (i) any actual or potential breach or default under the Debt Commitment Letter on the part of IDB Buyer or any other party to the Debt Commitment Letter, (ii) assuming the satisfaction any actual or waiver of the conditions potential failure to satisfy any condition precedent or other contingency set forth in Section 6.01 the Debt Commitment Letter or (iii) any intention of such party to terminate the Debt Commitment Letter or to not provide all or any portion of the Debt Financing. To the Knowledge of IDB Buyer (both before and Section 6.02 after giving effect to any "market flex" provisions contained in the Debt Commitment Letter): (x) IDB Buyer will be able to satisfy on a timely basis each term and taking into account condition relating to the Marketing Periodclosing or funding of the Debt Financing; (y) no fact, Parent does not have any reason occurrence, circumstance or condition exists that would reasonably be expected to believe that (1) cause the Debt Commitment Letter to terminate, to be withdrawn, modified, repudiated or rescinded or to be or become ineffective, (2) cause any of the terms or conditions relating to the closing or funding of any portion of the Debt Financing will not to be satisfied met or that complied with or (3) otherwise cause the full amount (or any portion) of the funds contemplated to be available under the Debt Financing or any other funds necessary Commitment Letter to pay the Required Amount will not be available to Parent IDB Buyer on a timely basis (and in any event as of the Closing DateClosing); and (z) no potential impediment exists to the funding of any of the payment obligations of IDB Buyer under this Agreement. Parent IDB Buyer has fully paid (or caused to be paid) any and all commitment fees or other fees to or deposits required by the extent required Debt Commitment Letter to be paid on or prior to before the date of this Agreement in connection with Agreement, and IDB Buyer will pay when due all other commitment or other fees arising under the Debt Financing. Except for the Fee Letters Commitment Letter as and customary engagement letters with respect to when they become payable.
(d) The aggregate net proceeds from the Debt Financing (none of which reduces both before and after giving effect to any "market flex" provisions contained in the amount Debt Commitment Letter) constitute all of the Debt Financing below financing required for the Required Amount or adversely affects consummation of the conditionalitytransactions contemplated by this Agreement and are sufficient in amount to provide IDB Buyer with the funds necessary to consummate the transactions contemplated hereby and to satisfy its obligations under this Agreement, enforceabilityincluding to pay the Purchase Price, termination or availability of and to pay all fees, costs and expenses to be paid by IDB Buyer related to the transactions contemplated by this Agreement, including such fees and expenses relating to the Debt Financing).
(e) There are no, as of the date hereofand there will not be any, there are no side letters conditions precedent or other agreements, contracts or arrangements contingencies related to the obligation of any kind relating party to the Debt Commitment Letter to which Parent fund the full amount (or any portion) of its Affiliates is a partythe Debt Financing, including any condition or other contingency relating to the availability of the Debt Financing pursuant to any "market flex" provisions, other than as expressly set forth in the Debt Commitment Letter as in effect on the date hereof (the "Disclosed Conditions"). Other than the Disclosed Conditions, no Financing LettersSource or other Person has any right to impose, and IDB Buyer has no obligation to accept, any condition precedent to any funding of the Debt Financing nor any reduction to the aggregate amount available under the Debt Commitment Letter (nor any term or condition which could have the effect of reducing the aggregate amount available under the Debt Commitment Letter). There are no side letters and (except for the Debt Commitment Letter) there are no agreements, contracts, arrangements or understandings, whether written or oral, with any Lender, Financing Source or other Person relating to the Debt Financing or the Debt Commitment Letter (including any that could affect the availability of the Debt Financing). Other than as set forth in the Debt Commitment Letter delivered to Seller prior to the date hereof, there are no conditions precedent relating to the funding of the full amount of the Debt Financing that would, or could reasonably be expected to, (i) impair the validity of the Debt Commitment Letter, (ii) reduce the aggregate amount of the Debt Financing, (iii) prevent or delay the consummation of the transactions contemplated hereby, (iv) cause the Debt Commitment Letter to be ineffective, or (v) otherwise result in the Debt Financing not being available on a timely basis in order to consummate the transactions contemplated hereby.
Appears in 2 contracts
Sources: Purchase Agreement (Jersey Partners Inc.), Purchase Agreement (Jersey Partners Inc.)
Financing. At (a) Parent has received and accepted an executed commitment letter dated March 8, 2024, by and among the ClosingDebt Financing Sources party thereto and Parent (together with all exhibits, assuming schedules and annexes thereto, the funding “Debt Commitment Letter”), together with the related fee letter referenced therein (in the case of the fee letter, redacted solely for provisions related to the amount or percentage basis points of fees, “flex” terms and other commercially sensitive economic terms, none of which will adversely affect the availability of, or impose conditions on, the availability of the Debt Financing at the Closing), pursuant to which, upon the terms and subject to the conditions set forth therein, the Debt Financing Sources party thereto have agreed to lend the amounts set forth therein (the “Debt Financing”).
(b) Parent has received and accepted an equity commitment letter dated March 8, 2024 (the “Equity Commitment Letter”, and together with the Debt Commitment Letter, the “Commitment Letters”) from MiddleGround Partners III, L.P. and MiddleGround Partners III-X, L.P. (collectively, the “Equity Investor”) pursuant to which the Equity Investor has agreed, subject to the terms and conditions thereof, to invest in Parent the cash amounts set forth therein. The Equity Commitment Letter provides that the Company is a third-party beneficiary thereof. The cash equity committed pursuant to the Equity Commitment Letter is collectively referred to in this Agreement as the “Cash Equity.” The Cash Equity and the Debt Financing are collectively referred to as the “Financing.” Parent has delivered to the Company true, correct and complete copies of the executed Commitment Letters and any fee letters related thereto (with respect to such related fee letters, redacted for provisions related to fees, the economic terms of any “securities demand” and “market flex” provisions, and other customary terms set forth therein; provided that none of the redacted provisions would affect the conditionality, availability or amount of the Financing).
(c) Except as expressly set forth in the Commitment Letters, as of the date hereof, there are no conditions precedent to the obligations of the Debt Financing Sources and the Equity Investor to provide the Financing. As of the date hereof, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent does not have any reason to believe that it will be unable to satisfy any conditions precedent to closing of the Financings set forth in the Commitment Letters on or prior to the Closing Date, nor does Parent have any reason to believe that the Financing will not be made available to Parent on or prior to the Closing Date.
(d) The Financing, when funded in accordance with the Debt Commitment Letter and Letters (including after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discountprovisions), together with cash and cash equivalents of Parent, Merger Sub, the Surviving Corporation and their respective Subsidiaries, shall provide Parent will have immediately available funds with cash proceeds on the Closing Date in an amount as is necessary to consummate the Transactions, including sufficient for the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect Consideration and the payment of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result ofwith the Contemplated Transactions (including the Financing) (such amount, the consummation of the Transactions (the “Required Financing Amount”). .
(e) As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that Letters are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes are the legal, valid and binding obligation obligations of Parent and, to the Knowledge of Parent, each of the Merger Sub, the other parties thereto, enforceable in accordance with its terms against Parent andexcept as enforcement may be limited by bankruptcy, to the Knowledge insolvency, reorganization or similar Laws affecting creditors’ rights generally and by general principles of Parentequity, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming assuming the satisfaction of the conditions set forth in Section 6.01 6.1 and 6.02Section 6.2, no event has occurred that, with or without notice, lapse of time, or both, would reasonably be expected to constitute a default or material breach or a failure to satisfy a condition precedent on the net proceeds part of Parent under the terms and conditions of the Debt Financing will, Commitment Letters. Parent has paid (or caused to be paid) in the aggregate full any and together with any cash or all commitment fees and other funds available fees required to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable paid pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment terms of the Required Amount. As of Commitment Letters on or before the date of this Agreement, and will pay in full any such amounts due on or before the Closing Date. As of the date hereof, none of the Commitment Letters has been modified, amended or altered, none of the Commitment Letters will be amended, modified or altered at any time through the Closing (iother than as permitted by Section 5.17), and none of the respective commitments under any of the Commitment Letters have been withdrawn or rescinded in any respect.
(f) Concurrently with the execution of this Agreement, Parent has caused the Equity Investor to deliver to the Company the duly executed Limited Guarantee. The execution, delivery and performance of the Limited Guarantee by the Equity Investor, and the consummation of the transactions contemplated thereby, have been duly and validly authorized by all requisite action by the Equity Investor, and no other proceedings on the part of the Equity Investor are necessary to authorize the execution, delivery or performance of the Limited Guarantee by the Equity Investor. The Limited Guarantee has been duly and validly executed and delivered by the Equity Investor and is in full force and effect and constitutes a valid and binding obligation of the Equity Investor, duly executed by the Equity Investor and enforceable against the Equity Investor in accordance with its terms, and no event has occurred whichthat, with or without notice, lapse of time or both, would reasonably be expected to could constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of the Equity Investor under the Limited Guarantee.
(g) Parent or, and Merger Sub acknowledge and agree that in no event shall the receipt or availability of any funds or financing by or to the Knowledge of Parent, any other parties thereto under any term Parent or Merger Sub be a condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date obligations of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersMerger Sub hereunder.
Appears in 2 contracts
Sources: Merger Agreement (Starrett L S Co), Merger Agreement (Starrett L S Co)
Financing. At (a) Section 4.6 of the ClosingParent Disclosure Letter sets forth true and complete copies of (i) (x) executed rollover commitment letters (the “Rollover Letters”) from parties (the “Rollover Investors”) that collectively have sole voting and dispositive power with respect to 3,139,975 shares of the Company, assuming which number of shares, when contributed to Parent under the funding of Rollover Letters, will satisfy all minimum requirements for equity contributions to Parent under the Debt Financing (whether expressed in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter terms of minimum value or the related fee letters (including with respect to fees and original issue discountpercentage of shares), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant towhich, and subject to the terms and conditions ofof which, the Debt Rollover Investors have committed to contribute to Parent the amount of shares of Common Stock set forth therein (the “Rollover Investment”), and (y) a schedule setting forth each Rollover Investor, the number of shares of the Company beneficially owned by and over which such Rollover Investor holds sole voting and dispositive power, and an indication of whether such shares of the Company are held directly or indirectly by such Rollover Investor, and (ii) executed debt commitment letters and related term sheets from ▇▇▇▇▇ Fargo Bank, National Association (the “▇▇▇▇▇ Commitment Letter”) and Fortress Credit Advisors LLC (the “Fortress Commitment Letter” and together with the ▇▇▇▇▇ Commitment Letter, the lender thereunder has “Debt Commitment Letters” or the “Financing Commitments”) (▇▇▇▇▇ Fargo Bank, National Association and Fortress Credit Advisors LLC, the “Lenders”) pursuant to which, and subject to the terms and conditions of which, the Lenders have committed to lend provide Parent and/or Merger Sub with financing in the amounts set forth therein for described therein, the purposes set forth in such Debt Commitment Letter proceeds of which may be used to consummate the Merger and the other transactions contemplated by this Agreement (the “Debt Financing” or the “Financing”). As of the date hereof, neither each of the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated Financing Commitments and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in Rollover Letters is a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent or Merger Sub and, to the Knowledge of the Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent andterms, subject to the Enforceability Exceptions. As of the date hereof, each of the Financing Commitments and the Rollover Letters is in full force and effect, and none of the Financing Commitments or the Rollover Letters has been withdrawn, rescinded or terminated or otherwise amended or modified in any respect. As of the date hereof, to the Knowledge of the Parent, each neither Parent nor Merger Sub is in breach of any of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the material terms or conditions set forth in Section 6.01 and 6.02, the net proceeds any of the Debt Financing will, in Commitments or the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Rollover Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date hereof, to the Knowledge of this AgreementParent with respect to the Company and its Subsidiaries, (i) there is no event has occurred whichfact or occurrence existing on the date hereof that, with or without notice, lapse of time or both, would reasonably be expected to constitute a default (A) make any of the assumptions or breach any of the statements set forth in the Financing Commitments or the Rollover Letters inaccurate, (B) result in a failure any of the conditions in the Financing Commitments or the Rollover Letters not being satisfied, (C) cause any of the Financing Commitments or the Rollover Letters to satisfy a condition precedentbe ineffective or (D) otherwise result in the Financing not being available, or the Rollover Investment not being made, in each case, on a timely basis in order to consummate the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition transactions contemplated by this Agreement. As of the Debt date hereof, neither the Rollover Investors nor any Lender has notified Parent or Merger Sub of its intention to terminate any Financing Commitment Letteror not to provide the Financing, and (ii) assuming none of the satisfaction Rollover Investors has notified Parent or waiver Merger Sub of its intention to terminate any Rollover Letter or not to make the Rollover Investment. Parent has not, without the prior written consent of the Company, amended, modified, supplemented or waived any of the conditions set forth or contingencies to funding contained in any Financing Commitment (including definitive agreements related thereto) or to the Rollover Investment contained in any Rollover Letter, or any other provision of, or remedies under, any Financing Commitment (including definitive agreements related thereto) or any Rollover Letter (except for any increases in the amount of funds available thereunder or the addition of Financing Sources in accordance with the terms thereof, or other relevant entities who did not execute a Financing Commitment or a Rollover Letter as of the date of this Agreement or as otherwise expressly permitted by Section 6.01 5.12(a)). Assuming (1) the Financing is funded in accordance with its terms and Section 6.02 conditions, (2) the Rollover Investment is made in accordance with the terms and taking into account conditions of the Marketing Period, Parent does not have any reason to believe that any Rollover Letters and (3) the satisfaction of the conditions to the Debt Company’s obligation to consummate the Merger set forth in Section 6.3(a), the net proceeds from the Financing will not will, together with the Rollover Investment and other funds available to Parent, be satisfied sufficient to consummate the Merger and the other transactions contemplated by this Agreement, including the payment by Parent and Merger Sub of the Merger Consideration, any fees and expenses of or that payable by Parent, Merger Sub or the Debt Financing Surviving Corporation, and any related repayment or refinancing of any indebtedness of the Company or any of its Subsidiaries, and any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent amounts required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount consummation of the Debt transactions contemplated by this Agreement. Parent or Merger Sub has paid in full any and all commitment or other fees required by any Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), Commitment that are due as of the date hereof, there and will pay, after the date hereof, all such commitments and fees as they become due. There are no side letters letters, understandings or other agreements, contracts agreements or arrangements of any kind relating to the Debt Commitment Letter Financing (except for customary fee letters and engagement letters which do not contain any additional conditions to closing or other agreements relating to the availability of the full amount of the Financing, and a complete copy of the fee letter has been made available to the Company with customary redactions of fee amounts, pricing caps, “market flex”, other economic terms and certain other terms, none of which redacted provisions would adversely affect the conditionality or aggregate principal amount of the Financing) or the Rollover Investment to which Parent Parent, Merger Sub or any of its their respective Affiliates is are a partyparty that relate to the amount, availability or conditions of the Financing or the Rollover Investment, other than the Financing Commitments and the Rollover Letters. There are no conditions precedent related to the funding of the full amount of the Financing, other than as expressly explicitly set forth in the Financing Commitments, and there are no conditions precedent related to the contribution of the full amount of the Rollover Investment, other than as explicitly set forth in the Rollover Letters. Assuming the satisfaction of the conditions to the Company’s obligation to consummate the Merger set forth in Section 6.3(a), neither Parent nor Merger Sub has any reason to believe that it will be unable to satisfy on a timely basis any conditions to the funding of the full amount of the Financing or the contribution of the full amount of the Rollover Investment, or that the Financing will not be available to, or that the Rollover Investment will not be contributed to, Parent or Merger Sub on the Closing Date. For the avoidance of doubt, it is not a condition to Closing under this Agreement, nor to the consummation of the Merger, for Parent or Merger Sub to obtain the Financing, the Rollover Investment or any alternative financing.
(b) Neither Parent, Merger Sub nor any of their Affiliates has (i) retained any financial advisor on a basis exclusive to Parent and/or Merger Sub and/or any such Affiliate or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing that would prevent or hinder such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent, Merger Sub nor any of their Affiliates has caused or induced any Person to take any action that, if taken by Parent and/or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.6(b).
Appears in 2 contracts
Sources: Merger Agreement (Feldenkreis George), Merger Agreement (Perry Ellis International, Inc)
Financing. At Parent has delivered to the ClosingCompany a true and complete copy of (i) the Equity Commitment Letter, assuming pursuant to which, upon the funding of terms and subject to the Debt Financing conditions set forth therein, OTPP has committed to provide the financing in accordance with the amount set forth therein (the “Equity Financing”) and (ii) the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount)Letter, Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Optionswhich, Company Restricted Shares upon the terms and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or subject to the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereofconditions set forth therein, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letterFargo Bank, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder National Association has committed to lend provide financing up to the amounts aggregate amount set forth therein for the purposes set forth in such the Debt Commitment Letter (the “Debt Financing”). As Assuming the accuracy of the date hereofrepresentations and warranties set forth in Article III and the performance by the Company of its obligations under this Agreement, neither the aggregate proceeds to be disbursed pursuant to the agreements contemplated by Equity Commitment Letter and the Debt Commitment Letter nor and together with available cash, cash equivalents and marketable securities of the Company, in the aggregate, will be sufficient to (i) fund the payment of the aggregate Transaction Consideration in respect of the Common Shares, (ii) pay any Fee Letter has been amended, restated or otherwise modified or waived prior and all fees and expenses required to be paid by Parent and Acquisition Sub in connection with the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated Amalgamation and the respective commitments contained in Equity Financing and (iii) satisfy all of the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution other payment obligations of Parent and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner Acquisition Sub contemplated by the Debt Commitment Letter)hereunder. As of the date of this Agreement, each of the Equity Commitment Letter and the Debt Commitment Letter is in full force and effect and, to the knowledge of Parent and constitutes the Acquisition Sub, is a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent andeach case, except as enforcement thereof may be limited by (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and any implied covenant of good faith and fair dealing, or remedies in general, as from time to time in effect, or (B) the exercise by courts of equity powers. Neither the Equity Commitment Letter nor the Debt Commitment Letter has been amended, supplemented or otherwise modified prior to the Knowledge date of Parentthis Agreement, each of and the other parties thereto, subject to commitment contained in the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to Commitment Letter or the Debt Commitment Letter, as applicable, has not, prior to the date of this Agreement, been withdrawn, terminated or rescinded in any respect. There are no other than as expressly set forth in agreements, side letters or arrangements relating to the Equity Commitment Letter or the Debt Commitment Letter. Assuming Letter that could affect the satisfaction availability or aggregate amount of the conditions set forth in Section 6.01 and 6.02, the net proceeds of Equity Financing or the Debt Financing willFinancing, in as applicable. The Equity Commitment Letter does not violate the aggregate fund documents of OTPP and together with any cash or other funds available OTPP has the ability to Parent and Merger Sub, be make capital calls sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to satisfy its obligations under the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required AmountEquity Commitment Letter. As of the date of this Agreement, (i) there are no conditions precedent or other contingencies related to the funding of the full amount under the Equity Financing or the Debt Financing, other than as set forth in or contemplated by the Equity Commitment Letter or the Debt Commitment Letter, as applicable. No event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to or Acquisition Sub under the Knowledge of Parent, any other parties thereto under any term Equity Commitment Letter or condition of the Debt Commitment Letter, and (ii) assuming . Assuming the satisfaction or waiver of the conditions set forth in Section 6.01 to Acquisition Sub’s obligation to consummate the Amalgamation and Section 6.02 and taking into account performance by the Marketing PeriodCompany of its obligations under this Agreement, as of the date of this Agreement, neither Parent does not have nor Acquisition Sub has any reason to believe that any of the conditions to the Equity Financing contemplated by the Equity Commitment Letter or the Debt Financing contemplated by the Debt Commitment Letter will not be satisfied or that the Equity Financing or the Debt Financing or any other funds necessary to pay the Required Amount will not otherwise be made available to Parent or Acquisition Sub on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees Date to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Lettersnecessary.
Appears in 2 contracts
Sources: Amalgamation Agreement, Agreement and Plan of Amalgamation (SeaCube Container Leasing Ltd.)
Financing. At the Closing, assuming the funding Buyer has delivered to Seller true and complete copies of the Debt Financing in accordance with the Debt Commitment Letter executed (a) (i) debt commitment letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount)Redacted Fee Letter, Parent will have immediately available funds in an amount each dated as is necessary to consummate the Transactionsof May 3, including the payment by Parent2019, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, between ▇▇▇▇▇▇▇▇ has delivered to the Company Television Group, Inc., and JPMorgan Chase Bank, N.A., Deutsche Bank AG New York Branch, Royal Bank of Canada, and Bank of America, N.A. (atogether in each case with their designated affiliates) a correct and complete fully executed copy of the (ii) debt commitment letterletter and related Redacted Fee Letter, each dated as of even date herewithMay 3, 2019, between Buyer and JPMorgan Chase Bank, N.A., Deutsche Bank AG New York Branch, Royal Bank of Canada, and Bank of America, N.A. (together in each case with their designated affiliates) (such agreements described in clauses (i) and (ii), collectively, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (thereto, as may be amended or modified in accordance with the terms hereofpursuant to Section 6.05, the “Debt Commitment LetterFinancing Commitments”), pursuant to which the Financing Sources party thereto have agreed, subject to the terms and conditions thereof, to lend the amounts set forth therein (the “Debt Financing”) for the purpose of funding, in part, the Transactions and related fees and expenses and (b) a copy equity commitment letter (and the related Redacted Fee Letter) with the equity financing source identified therein, in each case dated as of any fee letters related May 3, 2019 (such agreements, including all exhibits, schedules, annexes and amendments thereto, as may be modified pursuant to the Debt Commitment Letter (Section 6.05, the “Fee LettersEquity Financing Commitment” and, together with the Debt Commitment LetterFinancing Commitments, the “Financing LettersCommitments”) (), pursuant to which may be redacted to remove the fee amountsFinancing Sources party thereto have agreed, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions ofthereof, the Debt Commitment Letter, the lender thereunder has committed to lend invest the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Equity Financing”, and together with the Debt Financing, the “Financing”)) for the purpose of funding, in part, the Transactions and related fees and expenses. As of the date hereof, neither each of the Debt Commitment Letter nor any Fee Letter has been amendedFinancing Commitments, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawnform so delivered, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the is a legal, valid and binding obligation of Parent andBuyer or Buyer’s Affiliates party thereto, as applicable, and to the Knowledge of ParentBuyer’s knowledge, each of the other parties thereto, enforceable in accordance with its terms against Parent andexcept as such enforceability may be limited by (x) bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting or relating to creditors’ rights generally and (y) the Knowledge availability of Parent, each injunctive relief and other equitable remedies. As of the other parties theretodate hereof, subject the Financing Commitments have not been amended, supplemented or otherwise modified in any respect, no amendment, supplement or modification is contemplated in a manner that could reasonably be expected to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming affect the satisfaction of the conditions set forth in Section 6.01 Article V and 6.02the financing commitments thereunder have not been withdrawn, the net proceeds of the Debt Financing will, terminated or rescinded in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amountrespect. As of the date of this Agreement, (i) no No event has occurred whichthat, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent Buyer or Buyer’s Affiliates party thereto, as applicable, or, to the Knowledge of ParentBuyer’s knowledge, any other parties thereto under any term or condition of the Debt Commitment LetterFinancing Commitments, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Periodprecedent to Buyer’s obligations hereunder, Parent does not have any Buyer has no reason to believe that it (or its Affiliates party thereto) will be unable to satisfy any term or condition of closing set forth in the Financing Commitments at or prior to Closing, or that any portion of the conditions Financing to the Debt Financing be made thereunder will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will otherwise not be available to Parent on Buyer or Buyer’s Affiliates party thereto, as applicable, to consummate the Closing DateTransactions at the time required pursuant to this Agreement. Parent Buyer has fully paid (or caused to be paid) any and all commitment fees or other fees to required by the extent required Financing Commitments to be paid thereunder on or prior to the date of this Agreement Agreement. The Financing, when funded in accordance with the Financing Commitments, together with cash on hand or other sources of immediately available funds, will provide Buyer (directly or indirectly through its Affiliates party thereto) with funds sufficient to satisfy all of Buyer’s obligations under this Agreement, including the obligations under Article II, pay any other amounts required to be paid by Buyer in connection with the Debt Financingconsummation of the Transactions and pay all related fees and expenses of Buyer. Except for The obligations to make the Fee Letters and customary engagement letters with respect Financing available to Buyer or Buyer’s Affiliates party thereto, as applicable, pursuant to the Debt terms of the Financing (none Commitments are not subject to any conditions precedent or other contingencies related to the funding of which reduces the full amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersCommitments (including, with respect to the Debt Financing, satisfaction of the Marketing Period and changes effected pursuant to the “market flex” provisions in the applicable Redacted Fee Letter). As of the date of this Agreement, there are no agreements, arrangements or understandings (whether oral or written) or commitments to enter into agreements, arrangements or understandings (whether oral or written) to which Buyer or any of its Affiliates is a party related to the Financing other than as expressly contained in the Financing Commitments and delivered to Seller prior to the date hereof (except for customary engagement letters or non-disclosure agreements which do not impact the availability of the Financing). For the avoidance of doubt, it is not a condition to Closing under this Agreement for Buyer or its Affiliates to obtain the Financing or any alternative financing.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Sinclair Broadcast Group Inc), Equity Purchase Agreement (Walt Disney Co)
Financing. At Parent and Merger Sub have delivered to the ClosingCompany true, assuming correct and complete copies of (a) the funding executed debt commitment letter, dated as of October 1, 2020 among Parent, Merger Sub and the Debt Financing in accordance with Sources party thereto (including all exhibits, schedules and annexes thereto, as amended from time to time after the date hereof to the extent not prohibited by this Agreement, the “Debt Commitment Letter”), pursuant to which the Debt Commitment Letter Financing Sources have committed, subject only to the terms and after giving effect conditions set forth therein, to any lend the aggregate amounts set forth therein (such lending and funding, the “flex” provision in Debt Financing”) for the Debt Commitment Letter or purposes set forth therein, (b) the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment letter entered into by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid Debt Financing Sources in connection with, or as a result of, with the consummation of the Transactions Debt Financing (the “Required AmountFee Letter”). As ; provided that specific fee amounts and specific “market flex” terms, if any, none of which imposes, nor do they permit the date hereofimposition of, ▇▇▇▇▇▇ has delivered to any new conditions (or the Company modification or expansion of any existing conditions) may have been redacted, and (ac) a correct and complete fully the executed copy of the debt equity commitment letter, dated as of even date herewithOctober 1, 2020, among Parent, the Guarantors and the other parties thereto (including all exhibits, schedulesschedules and annexes thereto, annexes and amendments as amended from time to such letter in effect as of time after the date of hereof to the extent not prohibited by this Agreement (as may be amended or modified in accordance with the terms hereofAgreement, the “Debt Equity Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Commitment Letters”) (), pursuant to which may be redacted to remove the fee amountsGuarantors have committed, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions ofset forth therein, to make a cash equity contribution in the Debt Commitment Letter, the lender thereunder has committed to lend the amounts aggregate amount set forth therein (such equity contribution, the “Equity Financing” and, together with the Debt Financing, the “Financing”) for the purposes set forth in such Debt therein. The Equity Commitment Letter (provides that the “Debt Financing”)Company is a third-party beneficiary thereto in accordance with the terms thereof. As of the date hereof, neither none of the Commitment Letters has been amended, supplemented or modified, no such amendment, supplement or modification is contemplated or pending (other than amendments, supplements or modifications to the Debt Commitment Letter nor any Fee Letter has been amendedsolely to add additional lenders, restated or otherwise modified or waived prior to the execution arrangers, bookrunners and delivery of this Agreementsimilar entities), no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter Letters have not been withdrawn, rescinded, amended, restated terminated or otherwise modified rescinded in any respect prior and, to the execution knowledge of Parent and delivery Merger Sub, no such withdrawal, termination or rescission is contemplated. Except for the Fee Letter and the Commitment Letters, there are no side letters or Contracts to which Parent, Merger Sub or any Affiliate of this Agreement (in each caseeither thereof is a party related to the terms, other than to add lendersprovision, financial institutionslending, lead arrangersfunding or investing, bookrunnersas applicable, syndication agents of the Financing or other similar entities in a manner the transactions contemplated by the Debt Commitment Letter)hereby. As of the date of this Agreementhereof, Parent and Merger Sub have fully paid (or caused to be paid) any and all commitment fees or other fees that are required to be paid pursuant to the Debt Commitment Letter is Letters on or prior to the date hereof. The Commitment Letters are in full force and effect and constitutes are the legal, valid valid, binding and binding obligation enforceable obligations of Parent Parent, Merger Sub and, to the Knowledge knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to fund the full amount of the Financing subject only to the Knowledge of Parent, each satisfaction or waiver of the other parties theretoFinancing Conditions, in each case subject to the Bankruptcy and Equity ExceptionExceptions. There are no conditions precedent to funding the obligation full amount of the Financing (including pursuant to make any market flex provisions with respect to the Fee Letter delivered in connection with the Debt Financing available to Parent pursuant to the Debt Commitment LetterFinancing), other than as expressly set forth in the Debt Commitment Letter. Assuming Letters delivered to the satisfaction Company prior to the date hereof or as amended from time to time to the extent not prohibited by the terms of the conditions set forth in Section 6.01 and 6.02this Agreement (such conditions, the net proceeds of the Debt “Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required AmountConditions”). As of the date of this Agreementhereof, (i) no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to (i) constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or Merger Sub or any of their respective Affiliates or, to the Knowledge knowledge of Parent, any other parties party thereto under any term or condition of the Debt Commitment LetterLetters, and in each case that would reasonably be expected to prevent, delay or impede the Closing or (ii) result in any portion of the amounts to be provided, loaned, funded or invested in accordance with the Commitment Letters being unavailable on the Closing Date. As of the date hereof and assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing PeriodArticle VII, Parent does not have any has no reason to believe that any of the conditions precedent to the Debt Financing contemplated by the Commitment Letters within the control of Parent and Merger Sub will not be satisfied or that the Debt full amount of the Financing or any other funds necessary to pay the Required Amount will not be made available to Parent and Merger Sub in full on the Closing Date. Parent is not aware of the existence of any fact or event that would or would reasonably be expected to cause such conditions precedent to the Financing contemplated by the Commitment Letters within the control of Parent and Merger Sub not to be satisfied or the full amount of the Financing not to be made available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as As of the date hereof, there are no side letters and assuming satisfaction or other agreements, contracts or arrangements waiver of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly conditions set forth in Article VII and the funding of the Financing in accordance with the Commitment Letters, Parent and Merger Sub will have on the Closing Date funds sufficient to pay all amounts payable by Parent or Merger Sub pursuant to Article II on the Closing Date and to pay any and all fees and expenses required to be paid by Parent and Merger Sub in connection with the transactions contemplated by this Agreement and the Financing (collectively, the “Financing Uses”). Notwithstanding anything herein to the contrary, each of Parent and Merger Sub acknowledges and agrees that neither the receipt by Parent or Merger Sub nor the availability to Parent or Merger Sub of the Financing or any other financing shall be a condition to the obligations of Parent or Merger Sub to consummate any of the transactions contemplated hereby.
Appears in 2 contracts
Sources: Merger Agreement (American Renal Associates Holdings, Inc.), Merger Agreement (American Renal Associates Holdings, Inc.)
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), a) Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a true and correct and complete fully executed copy of the debt (i) an executed commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended amended, modified, supplemented, replaced or modified extended from time to time after the date of this Agreement to the extent permitted in compliance with Section 6.10(c), the “Commitment Letter”), from the arrangers and lenders (including any arrangers and lenders who become party thereto by joinder in accordance with the terms hereofof the Commitment Letter) party thereto (such lenders, collectively, the “Debt Commitment LetterLenders”) and (b) a copy of any fee letters related ), pursuant to which the Lenders have agreed, subject to the Debt terms and conditions thereof, to provide the debt amounts set forth therein (the debt financing contemplated by the Commitment Letter (including any debt securities to be issued in lieu of the bridge facility and any credit facilities obtained in lieu of the incremental and refinancing facilities, each as contemplated by the Commitment Letter and the Fee Letter) is collectively referred to in this Agreement as the “Fee Letters” andDebt Financing”), together with the Debt Commitment Letter, the “Financing Letters”(ii) (which may be redacted to remove the fee amounts, letter referred to in the Commitment Letter (with only economic and market flex terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, (none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or would adversely affect the conditionality, enforceability, termination total amount or availability of the Debt Financing). Pursuant to) (each as amended, and subject modified, supplemented, replaced or extended from time to time after the terms and conditions ofdate of this Agreement in compliance with Section 6.10, the Debt Commitment “Fee Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter ”) and (the “Debt Financing”). iii) a related redacted engagement letter.
(b) As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, there are no amendment, restatement conditions precedent or other modification is contemplated and contingencies related to the respective commitments contained funding of the Debt Financing or any contingencies that would permit the Lenders to reduce the total amount of the Debt Financing other than those set forth in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated (or otherwise modified in any respect prior the unredacted portions of the Fee Letter) delivered to the execution and delivery of this Agreement (Company in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letteraccordance with Section 5.09(a). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There there are no conditions precedent other agreements, side letters or arrangements relating to the obligation to make the Debt Financing available to which Parent pursuant or any of its Subsidiaries is a party as of the date of this Agreement that would impose conditions to the funding of the Debt Commitment LetterFinancing, other than as expressly those set forth in the Debt Commitment Letter (or in the unredacted portions of the Fee Letter). Assuming As of the date of this Agreement and assuming the satisfaction of the conditions set forth in Section 6.01 7.01 and 6.02Section 7.02, Parent does not have any reason to believe that it will be unable to satisfy on a timely basis all conditions to be satisfied by it in the Commitment Letter or the Fee Letter at the time it is required to consummate the Closing hereunder, nor does Parent have knowledge, as of the date of this Agreement, that any Lender will not perform its funding obligations under the Commitment Letter in accordance with its terms and conditions.
(c) As of the date of this Agreement, the net proceeds of the Debt Financing willCommitment Letter is valid, in the aggregate binding and together with any cash or other funds available to enforceable against Parent and Merger Suband, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Lettersknowledge of Parent, including after giving effect to the maximum amount other parties thereto (except as such enforceability may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Laws affecting creditors’ rights generally and by general principles of any “flex” provisionsequity) for the payment of the Required Amountand is in full force and effect. As of the date of this Agreement, (i) assuming the satisfaction of the condition contained in Section 7.02(a), no event has occurred whichthat, with or without notice, lapse of time time, or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to or Merger Sub under the Knowledge of Parent, any other parties thereto under any term or condition terms and conditions of the Debt Commitment Letter and Fee Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) in full any and all commitment fees or other fees to the extent required to be paid pursuant to the terms of the Commitment Letter and Fee Letter on or before the date of this Agreement. The Commitment Letter and Fee Letter have not been modified, altered or amended on or prior to the date of this Agreement in connection with and none of the Debt Financing. Except for commitments under the Fee Letters and customary engagement letters with respect Commitment Letter have been withdrawn or rescinded on or prior to the Debt Financing date of this Agreement.
(none d) Assuming the satisfaction of which reduces the amount conditions set forth in Section 7.01 and Section 7.02, the proceeds of the Debt Financing below after giving effect to all “flex” provisions, if funded, together with available cash of Parent and Merger Sub, shall constitute sufficient funds for the Required Amount or adversely affects satisfaction of all of Parent’s and Merger Sub’s obligations to pay any amounts under Article 2 of this Agreement, including the conditionality, enforceability, termination or availability payment of the Debt Financing), as aggregate Merger Consideration and all other amounts to be paid pursuant to Section 2.08 and Section 2.10 and the payment of all associated costs and expenses of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersMerger.
Appears in 2 contracts
Sources: Merger Agreement (Constant Contact, Inc.), Merger Agreement (Endurance International Group Holdings, Inc.)
Financing. At (a) Until the ClosingDischarge of Revolving Obligations, assuming if any Grantor shall be subject to any Insolvency Proceeding and the funding Revolving Collateral Agent consents to the use of cash collateral (as such term is defined in Section 363(a) of the Debt Financing in accordance Bankruptcy Code; herein, “Cash Collateral”) constituting Revolving Priority Collateral, and/or to permit any Grantor to obtain financing provided by any one or more Revolving Claimholders under Section 364 of the Bankruptcy Code or any similar Bankruptcy Law secured by a Lien on such Revolving Priority Collateral that is (i) senior or pari passu with the Debt Commitment Letter Liens on the Revolving Priority Collateral securing the Notes Obligations and after giving effect (ii) junior to any “flex” provision in the Debt Commitment Letter or the related fee letters Liens (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Optionsany Exercise of Secured Creditor Remedies regarding such Liens) on the Notes Priority Collateral securing the Notes Obligations (such financing, Company Restricted Shares and Company RSUs under this Agreementa “DIP Financing”), and if the Grantors desire to obtain authorization from the Bankruptcy Court to use such Cash Collateral and/or to obtain such DIP Financing, then the Notes Collateral Agent agrees that it will be deemed to have consented, will raise no objection to, nor support any other Person objecting to, the use of such Cash Collateral and/or to such DIP Financing (including, except as set forth in clause (c) below, any objection based on an assertion that the Notes Claimholders are entitled to adequate protection of their interest in the Collateral as a condition thereto), and the Notes Collateral Agent will subordinate its Liens in the Revolving Priority Collateral to the Liens granted in connection with the use of Cash Collateral and/or securing such DIP Financing (and all obligations relating thereto, including any “carve-out” in favor of fees and expenses of professionals retained by any debtor or payable statutory committee as agreed to by Parentthe Revolving Collateral Agent and the Revolving Lenders with respect to Revolving Priority Collateral), Merger Sub to the extent any Liens securing the Revolving Obligations are discharged, subordinated to, or the Surviving Corporation made pari passu with any new Liens securing such DIP Financing and to any other amounts, including Indebtedness replacement Liens granted as adequate protection of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation interests of the Transactions Revolving Claimholders in the Collateral (the “Required AmountRevolving Lender Adequate Protection Lien”). As of the date hereof, ▇▇▇▇▇▇ has delivered in each case to the Company extent consistent with the other provisions of this Agreement; provided that (a) a correct and complete fully executed copy the Notes Collateral Agent retains its Lien on the Collateral to secure the Notes Obligations and, as to the Notes Priority Collateral only, such Lien has the same priority as existed prior to the commencement of the debt commitment letter, dated as Insolvency Proceeding and any Lien on the Notes Priority Collateral granted in connection with such use of even date herewithCash Collateral and/or securing such DIP Financing and any Revolving Lender Adequate Protection Lien on the Notes Priority Collateral (and all obligations relating thereto, including all exhibits, schedules, annexes any “carve-out” in favor of fees and amendments expenses of professionals retained by any debtor or statutory committee as agreed to such letter in effect as by the Revolving Collateral Agent and the Revolving Lenders with respect to Revolving Priority Collateral) is junior and subordinate to the Lien of the date of this Agreement (as may be amended or modified in accordance with Notes Collateral Agent on the terms hereofNotes Priority Collateral, the “Debt Commitment Letter”) and (b) all Liens on Revolving Priority Collateral granted in connection with such use of Cash Collateral and/or securing any such DIP Financing shall be senior to or on a copy parity with the Liens of any fee letters related the Revolving Collateral Agent and the Revolving Claimholders securing the Revolving Obligations on Revolving Priority Collateral, (c) to the Debt Commitment Letter (extent that the “Fee Letters” andRevolving Collateral Agent is granted a Revolving Lender Adequate Protection Lien on Collateral arising after the commencement of the Insolvency Proceeding or additional claims, together the Notes Collateral Agent or the Notes Claimholders are permitted to request such a Lien on such additional Collateral with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions relative priority set forth in Section 6.01 2.1 (and 6.02, neither the net proceeds of the Debt Financing will, in the aggregate and together with Revolving Collateral Agent nor any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out Revolving Claimholder shall oppose any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of motion by any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters Notes Claimholder with respect to the Debt Financing (none granting of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financingsuch a Lien), as and (d) the terms of such DIP Financing or Cash Collateral order do not either require such Notes Claimholders to extend additional credit pursuant to such DIP Financing or authorize the date hereof, there are no side letters or other agreements, contracts or arrangements use of any kind relating Cash Collateral consisting of Notes Priority Collateral. If the Revolving Claimholders offer to provide DIP Financing that meets the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly requirements set forth in clauses (a) through (d) above in this paragraph, and if the Grantors desire to obtain authorization from the Bankruptcy Court to obtain such DIP Financing, then the Notes Collateral Agent agrees, on behalf of itself and the other Notes Claimholders, that no Notes Claimholder shall, directly or indirectly, provide, offer to provide, or support (i) any financing competing with the DIP Financing Lettersor (ii) any Term/Notes DIP Financing (as defined below). The foregoing provisions of this Section 6.2(a) shall not prevent the Notes Collateral Agent from objecting to any provision in any Cash Collateral or DIP Financing order or documentation relating to any provision or content of a plan of reorganization. The Revolving Collateral Agent, on behalf of itself and the Revolving Claimholders, agrees that no such Person shall provide to such Grantor consent to use Cash Collateral and/or enter into any DIP Financing to the extent that the Revolving Collateral Agent or any Revolving Claimholder would, in connection with such financing, be granted a Lien on the Notes Priority Collateral senior to or pari passu with any Liens of the Notes Collateral Agent.
Appears in 2 contracts
Sources: Intercreditor Agreement (Salem Media Group, Inc. /De/), Intercreditor Agreement
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ a) Purchaser has delivered to the Company (a) a Seller true, complete and correct and complete fully executed copy copies of (i) the debt commitment letter, dated as of even date herewith, letter (including all exhibits, schedules, schedules and annexes thereto and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified from time to time in accordance with its terms and to the terms hereofextent permitted by Section 6.8(b), the “Debt Commitment Letter”) ), dated as of the date hereof, from the Financing Entities, and (bii) a copy that certain Incremental Assumption and Amendment Agreement and Amendment, dated as of any fee letters related the date hereof (including all exhibits, schedules and annexes thereto and as amended and restated, supplemented or otherwise modified from time to time in accordance with its terms and to the Debt Commitment Letter (extent permitted by Section 6.8(b), the “Fee LettersCredit Agreement Amendment” and, and together with the Debt Commitment Letter, the “Debt Commitment Documents”), among the Purchaser, the Financing Letters”Entities and the other parties thereto, and (iii) any fee letters related to the foregoing (which may be redacted redacted, in the case of such fee letters, solely with respect to remove the fee amounts, amounts and percentages of the fees and other economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this typeconnection with similar financings; provided that such redactions would not be reasonably expected to conceal any term that could terminate, none of which redactions covers terms that reduce the amount of the Debt Financing to below the Required Amount the amount of, or adversely affect the conditionality, enforceability, termination conditionality or availability enforceability of the Debt Financing) (such Debt Commitment Documents and each such fee letter, collectively, the “Debt Financing Commitment”). Pursuant to, pursuant to which the applicable Financing Entities have committed, on the terms and subject to the terms and conditions ofset forth therein, the Debt Commitment Letter, the lender thereunder has committed to lend provide debt financing in the amounts set forth therein to Purchaser for the purposes set forth in such of, among other things, financing the Transactions and related fees and expenses.
(b) As of the date hereof, the Debt Financing Commitment Letter is a legal, valid, binding and enforceable obligation of Purchaser and (to Purchaser’s knowledge) each of the “Debt Financing”other parties thereto (subject to the Bankruptcy and Equity Exception). As of the date hereof, neither the Debt Financing Commitment Letter nor any Fee Letter is in full force and effect, and the Debt Financing Commitment has not been amendedterminated, restated withdrawn, rescinded or otherwise amended or modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated in any respect and the respective commitments contained in the Debt Commitment Letter therein have not been terminated, withdrawn, rescinded, amended, restated reduced or otherwise amended or modified in any respect prior (and no such termination, withdrawal, rescission, reduction, amendment or modification thereof is contemplated other than an amendment or modification solely to join additional Financing Sources thereto and to make certain other amendments, including to upsize the Purchaser’s revolver, modify existing financial maintenance covenants and make certain other amendments and modifications relating to the execution and delivery of this Agreement (in each casePurchaser’s revolver, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letterprovided that such amendments are not Prohibited Modifications). As of the date hereof, there are no side letters or other Contracts, agreements, arrangements or understandings of this Agreement, any kind (written or oral) to which Purchaser or (to Purchaser’s knowledge) any of its Affiliates is a party that are directly or indirectly related to the Debt Financing Commitment Letter is or the Debt Financing, other than customary engagement letters and fee credit letters. Purchaser has fully paid any and all commitment fees or other fees or expenses in full force and effect and constitutes connection with the legal, valid and binding obligation of Parent and, Debt Financing that are payable on or prior to the Knowledge of Parent, each date hereof. As of the other parties theretodate hereof, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There there are no conditions precedent or other contingencies related to the obligation to make funding of the Debt Financing available to Parent pursuant to the Debt Commitment LetterRequired Amount, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required AmountDocuments. As of the date of this Agreementhereof, (i) no event has occurred as of the date hereof which, with or without notice, lapse of time or both, would (i) constitutes, or could reasonably be expected to constitute constitute, a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent Purchaser or, to the Knowledge of ParentPurchaser’s Knowledge, any other parties party thereto under any term or condition of the Debt Financing Commitment Letter, and or (ii) assuming the satisfaction or waiver could reasonably be expected to (A) make any of the conditions representations of Purchaser or, to Purchaser’s Knowledge, any other party thereto set forth in Section 6.01 and Section 6.02 and taking into account the Marketing PeriodDebt Financing Commitment inaccurate in any respect, Parent does not have any reason to believe that (B) result in any of the conditions to in the Debt Financing will Commitment not be being satisfied on a timely basis or that (C) otherwise result in the Debt Financing or any other funds necessary in an amount equal to pay at least the Required Amount will not be being available in accordance with the terms of the Debt Financing Commitment. As of the date hereof, no Financing Entity has notified Purchaser of its intention to Parent terminate the Debt Financing Commitment or not to provide all or any portion of the Debt Financing. Assuming (1) the accuracy of the representations and warranties set forth in Article IV in all material respects and (2) the performance by Seller of the covenants and agreements contained in this Agreement in all material respects, the Debt Financing, when funded in accordance with the Debt Financing Commitment, shall provide Purchaser with cash proceeds on the Closing Date. Parent has fully paid Date in an amount that, together with cash then otherwise immediately available to Purchaser, is sufficient for the satisfaction of all of their respective obligations under the Transaction Documents and the Debt Financing Commitment, including the (i) payment of the Closing Purchase Price (as well as the Final Purchase Price) and the repayment or caused refinancing of any outstanding Final Closing Indebtedness contemplated or required to be paidrepaid or otherwise satisfied in connection with the consummation of the transactions contemplated hereby, (ii) payment of any and all commitment fees and expenses of or other fees to the extent required to be paid by Purchaser or any of its Affiliates on or prior to the date of this Agreement Closing Date in connection with the Debt Financing. Except for the Fee Letters transactions contemplated hereby and customary engagement letters with respect to by the Debt Financing and (none iii) satisfaction of which reduces the amount all other payment obligations of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent Purchaser or any of its Affiliates is contemplated hereunder and under the other Transaction Documents and under the Debt Financing Commitment required to be made at or in connection with the Closing (the amounts contemplated by clauses (i) through (iii), the “Required Amount”).
(c) Purchaser acknowledges and agrees that, notwithstanding anything to the contrary in this Agreement, the consummation of the Debt Financing shall not be a party, other than as expressly set forth in condition to the Financing Lettersobligation of Purchaser to consummate the transactions contemplated hereby.
Appears in 2 contracts
Sources: Transaction Agreement (DOVER Corp), Transaction Agreement (Terex Corp)
Financing. At the Closing, assuming the funding Buyer has obtained: (i) a debt financing commitment letter (together with copies of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect any provisions relating to any “market flex” provision in or similar provisions affecting the Debt Commitment Letter structure, pricing, maturity, amortization or the related fee letters (including any other terms with respect to fees and original issue discountthe financing contemplated by such debt financing commitment letter), Parent will have immediately available funds in an amount dated as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ by and among Jefferies Finance LLC (“Jefferies”), Bank of Montreal (“BMO”), KeyBank National Association (“KeyBank”), CHS V and Buyer, pursuant to which each of Jefferies, BMO and KeyBank has delivered committed to provide or cause to be provided debt financing to Buyer (which includes up to $200,000,000 in bridge financing to be utilized in the event that the issuance and sale of senior secured second lien notes in a comparable amount is not consummated at or prior to the Company Closing) (athe “Bridge Loans”) in connection with the transaction contemplated hereby, a correct complete and complete accurate fully executed copy of which is attached hereto as Exhibit E (the “Bridge Loans Commitment Letter”); (ii) a debt financing commitment letter (together with copies of any provisions relating to “market flex” or similar provisions affecting the structure, pricing, maturity, amortization or any other terms with respect to the financing contemplated by such debt financing commitment letter), dated as of the date hereof, by and among General Electric Capital Corporation (“GE Capital”), GE Canada Finance, Buyer, BMO, Key Bank (together, the “Revolver Lenders”) and Buyer, pursuant to which the Revolver Lenders have committed to provide or cause to be provided debt financing to Buyer (which includes up to $40,000,000 in a senior secured credit facility of which up to Cdn $20,000,000 may be available to a Canadian borrower) (the “Revolver Loans”), a complete and accurate fully executed copy of which is attached hereto as Exhibit F (the “Revolver Commitment Letter” and together with the Bridge Loans Commitment Letter, the “Debt Commitment Letters”); and (iii) an equity financing commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related pursuant to the Debt Commitment Letter (the “Fee Letters” andwhich CHS V has, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant toamong other things, and subject to the terms and conditions ofthereof, committed to provide equity financing to Buyer in connection with the transactions contemplated hereby, a complete and accurate fully executed copy of which is attached hereto as Exhibit G (the “Equity Commitment Letter”). The Debt Commitment Letters and Equity Commitment Letter shall together be referred to herein as the “Commitment Letters”. Subject to the conditions expressly set forth therein, the aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Commitment Letters provide all funds necessary (a) to consummate the transactions contemplated hereby, including the payment of the Purchase Price, the deposit of the Escrow Amount, the payoff of the Company Senior Debt Payoff Amount and Indebtedness identified on the Indebtedness Pay-Off Schedule and the payment of the unpaid Seller Transaction Expenses in accordance with the final invoices delivered pursuant to Section 2.02(i)(iv), and (b) to pay all fees and expenses of Buyer at the time of the Closing. The Debt Commitment LetterLetters (together with the ancillary documents referenced therein or delivered to the Company’s counsel) constitute all of the agreements entered into between Jefferies, BMO, KeyBank, GE Capital, GE Canada Finance and/or their respective Affiliates and Buyer and its Affiliates with respect to the lender thereunder has committed financing arrangements contemplated thereby. The Commitment Letters are not subject to lend any contingency or condition of any kind whatsoever related to the amounts set forth therein for funding of the purposes full amount of the financing contemplated by the Commitment Letters (including any “market flex” provisions or similar provisions affecting the structure, pricing, maturity, amortization or any other terms) other than as set forth in such Debt Commitment Letter the executed copies thereof (and in the copy of the “Debt Financing”)market flex” provision or similar provisions affecting the structure, pricing, maturity, amortization or any other terms excerpted from any related fee letter) attached hereto. The Commitment Letters are in full force and effect, constitute the legal, valid and binding obligations of Buyer and, to the knowledge of Buyer, the other parties thereto, and have not been modified or amended in any respect, and the respective commitments contained in the Commitment Letters have not been withdrawn or rescinded. Neither Buyer nor any of its Affiliates is in breach of any of the Commitment Letters nor do Buyer or any of its Affiliates have knowledge of any breach of the Commitment Letters by any of the other parties thereto. As of the date hereof, to the Buyer’s knowledge, (x) neither the Debt Buyer nor any other party to any Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, will be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure unable to satisfy on a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that timely basis any of the conditions that are required to be satisfied by it or such other party as a condition to the Debt Financing obligations under the Commitment Letters prior to the expiration thereof and (y) no portion of the financing contemplated by the Commitment Letters will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be made available to Parent on Buyer at the Closing DateClosing. Parent Buyer has fully paid (or caused to be paid) in full any and all commitment fees or and/or other fees to the extent required to be paid on or prior to the date hereof under the terms of this Agreement in connection with the Debt Financing. Except for the Fee Commitment Letters and customary engagement letters with respect will pay all other commitment fees and/or other fees required to be paid under the Debt Financing (none of which reduces the amount terms of the Debt Financing below Commitment Letters upon the Required Amount or adversely affects the conditionality, enforceability, termination or availability Closing. Buyer will not use any portion of the Debt Financing), as Cdn $20,000,000 of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating Revolver Loans to the Debt Commitment Letter to which Parent or repay any of its Affiliates is a party, other than as expressly set forth in the Financing LettersCompany Senior Debt.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Thermon Holding Corp.)
Financing. At DIP Financing Prior to the ClosingPetition Date, assuming the funding of Debtors shall have entered into a debt financing commitment letter with Citibank Global Markets Inc. providing for debtor-in-possession financing on the Debt Financing in accordance with terms attached hereto as Exhibit 1 (the Debt Commitment Letter and after giving effect to any “flex” provision DIP Term Sheet”). Permitted Refinancing Stipulation The Consenting Creditors hereby stipulate that entry into the agreement governing the DIP Facilities (as defined in the Debt Commitment Letter or DIP Term Sheet) (the related fee letters (including “DIP Credit Agreement”) constitutes a “Permitted Refinancing” as such term is defined by the ABL Intercreditor Agreement. Adequate Protection During the Chapter 11 Cases, the Company shall provide adequate protection with respect to fees and original issue discountFirst Lien Claims consisting of: (i) the adequate protection provided by clauses (c), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions(d), including the payment by Parent, Merger Sub and the Surviving Corporation (e) of the aggregate amount “Adequate Protection” provision of the Merger ConsiderationDIP Term Sheet; (ii) customary lien stipulations, other amounts payable pursuant to Article II and (including all amounts payable in respect iii) timely payment of Company Stock Options, Company Restricted Shares the reasonable and Company RSUs under this Agreement), any documented fees and expenses of (but not success fees, transaction fees, or payable by Parent, Merger Sub or the Surviving Corporation and any other amountssimilar fees), including Indebtedness reasonable and documented professional fees and expenses, incurred by (A) the Ad Hoc First Lien Group, and (B) the agents under the Existing ABL Revolver, the Existing RCF, and the Claire’s Term Loan, and the trustees under the Claire’s 2019 1L Notes Indenture and the Claire’s 2020 1L Notes Indenture; provided that the payment of all such fees and expenses shall be subject to the Debtors’ or any party in interest’s rights to seek a determination that such payments should be recharacterized as repayment on account of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation secured portion of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect First Lien Claims as of the date Petition Date. Upon the termination of this Agreement the RSA by the Requisite Consenting Creditors (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained defined in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable RSA) in accordance with its terms against Parent andterms, the Requisite Consenting Creditors shall have the right to the Knowledge of Parent, each of the other parties thereto, subject to file a motion with the Bankruptcy and Equity Exception. There are no conditions precedent Court requesting additional adequate protection on account of First Lien Claims with respect to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth their interest in the Debt Commitment LetterNotes Priority Collateral (as defined in the ABL Intercreditor Agreement), including in the form of cash-pay interest at the default rate on account of First Lien Claims; provided that the Debtors’ or any party in interest’s rights to contest any such request on any basis whatsoever are fully reserved. Assuming For the satisfaction avoidance of doubt, in no instance shall the conditions set forth Debtors be required to provide adequate protection on account of First Lien Claims in Section 6.01 and 6.02the form of cash-pay interest unless otherwise ordered by the Bankruptcy Court after the occurrence of an RSA Milestone Event. CLSIP Loan Amendment/Refinancing Not later than seven (7) days following the Petition Date, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute Company shall enter into a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters forbearance with respect to the Debt Financing (none of which reduces CLSIP Loan Credit Agreement, with the amount holders of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability CLSIP Loan other than insiders of the Debt FinancingCompany (as insider is defined in the Bankruptcy Code) (the “CLSIP Creditors”) on terms consistent with this Term Sheet and otherwise reasonably acceptable to the Company and the Requisite Consenting Creditors (the “CLSIP Forbearance Agreement”), as to provide, among other things, that any “going concern” default arising with respect to the CLSIP Loan, and any other defaults arising on account of the date hereoftransactions and agreements contemplated hereby, there are no side letters or other agreements, contracts or arrangements shall be waived during the pendency of any kind relating the Chapter 11 Cases. CLSIP Creditors consenting to the Debt Commitment Letter CLSIP Forbearance Agreement and the Sponsor, solely with respect to which Parent or any the Sponsor’s CLSIP Loan claims, will receive a one-time forbearance fee paid in kind (i.e. additional CLSIP loan principal amount owed) of its Affiliates is a party, other than 2.75% of their holdings under the CLSIP Loan. Such forbearance fee paid in kind shall accrue interest at the default rate from the closing date of the CLSIP Forbearance Agreement and be paid interest as expressly set forth below. Additionally, the CLSIP Forbearance Agreement will: • provide for payment of interest in cash on a regularly scheduled basis while the CLSIP Forbearance Agreement is in effect at the default rate; and • provide that the CLSIP Loan, including amounts on account of the forbearance fee and interest on such forbearance fee, will be repaid in full on the Effective Date (as defined in the Financing LettersRSA).
Appears in 2 contracts
Sources: Restructuring Support Agreement (Claires Stores Inc), Restructuring Support Agreement (Claires Stores Inc)
Financing. (a) At the ClosingAcceptance Time and at the Effective Time, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent Purchaser will have immediately available all the funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub Offer and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under accordance with this Agreement), any and to make all other necessary payments of fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection withby Parent and Purchaser relating to such transactions, or as a result ofincluding, without limitation, the consummation funds necessary to accept for payment and pay for all Shares tendered in the Offer and the aggregate Merger Consideration and any other repayment or refinancing of debt contemplated by the Transactions Commitment Letters and to pay all fees and expenses to be paid by the Surviving Corporation or any of its Affiliates at Closing (the “Required AmountAmounts”). .
(b) Parent has delivered to the Company: (i) a true and complete copy of the executed commitment letter by ▇▇▇▇▇ Fargo Trade Capital, LLC (“▇▇▇▇▇ Fargo”), dated February 12, 2009 (the “▇▇▇▇▇ Fargo Commitment Letter”) pursuant to which ▇▇▇▇▇ Fargo has committed to lend up to $30,000,000 and to serve as administrative agent for the $40,000,000 senior factoring and revolving credit facility (the “▇▇▇▇▇ Facility”) necessary for the parties to this Agreement to consummate the transactions contemplated by this Agreement and (ii) a true and complete copy of the executed commitment letter by Glenhill Special Opportunities Master Fund LLC (“Glenhill”), dated February 13, 2009 (the “Glenhill Commitment Letter”) pursuant to which Glenhill has committed to lend up to $10,000,000 towards the ▇▇▇▇▇ Facility (the financing contemplated by the ▇▇▇▇▇ Fargo Commitment Letter and the Glenhill Commitment Letter collectively, the “▇▇▇▇▇ Financing”)
(c) Parent has delivered to the Company a true and complete copy of the executed commitment letter by KEBA LLC (“KEBA”, and together with Glenhill and ▇▇▇▇▇ Fargo, the “Lenders”), dated February 23, 2009, (such commitment letter, the “Debt Financing Commitment Letter” and together with the ▇▇▇▇▇ Fargo Commitment Letter, and the Glenhill Commitment Letter, the “Commitment Letters”) providing for the debt financing (the “Debt Financing” and together with the ▇▇▇▇▇ Financing, the “Financings”) necessary for the parties to this Agreement to consummate the transactions contemplated by this Agreement.
(d) As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company Commitment Letters are in full force and effect (aassuming the due authorization, execution and delivery thereof by the other parties thereto) a correct and complete fully executed copy of the debt commitment letterhave not been replaced, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified and the commitments contained therein have not been withdrawn or rescinded in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters respect. There are no conditions precedent related to the Debt Commitment Letter (funding of the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the full amount of the Debt Financing below Financings contemplated by the Required Amount or adversely affect the conditionalityCommitment Letters, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes other than as set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt each Commitment Letter). As of the date of this Agreement, to the Debt Knowledge of Parent, no event has occurred that (with or without notice, lapse of time, or both) would constitute a breach or default under any of the Commitment Letter Letters by Parent or Purchaser. Parent has no Knowledge of any facts or circumstances that are reasonably likely to result in (i) any of the conditions set forth in the Commitment Letters not being satisfied, or (ii) the funding contemplated in the Commitment Letters not being made available to Parent on a timely basis in order to consummate the transactions contemplated by this Agreement.
(e) Parent has delivered to the Company a true and complete copy of the executed Buying Agency Agreement (the “Buying Agency Agreement”), dated as of December 17, 2008, between NAF Holding, LLC, parent of Parent, and Li & ▇▇▇▇ (Trading) Limited (“Li & ▇▇▇▇”), pursuant to which Li & ▇▇▇▇ is obligated to assume responsibility for and cause to be issued, and shall cause to be issued guarantees, letters of credit, surety bonds or similar instruments (collectively, “LCs”) from a Qualified Institution in replacement of, or as security for, each letter of credit issued in respect of the Company’s business immediately prior to the Acceptance Time. The Buying Agency Agreement is in full force and effect and constitutes has not been replaced, amended or modified, and the legal, valid and binding obligation of Parent and, obligations contained therein have not been withdrawn or rescinded in any respect.
(f) Subject to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the those conditions set forth in Section 6.01 and 6.02Annex I, Parent acknowledges that its obligations hereunder are not in any respect, directly or indirectly, conditioned upon the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount receipt of any “flex” provisions) for funds contemplated by the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Letters.
Appears in 2 contracts
Sources: Merger Agreement (Naf Holdings Ii, LLC), Merger Agreement (Hampshire Group LTD)
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct Buyers have delivered to Seller true and complete copies, including all exhibits, schedules or amendments thereto, of the fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, (the “Debt Commitment Letter”) and ), by the lenders party thereto (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Lettercollectively, the “Financing LettersLenders”) (which may be redacted ), in favor of Silgan, pursuant to remove the fee amountswhich, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions ofset forth therein, the Debt Commitment LetterLenders have committed to provide debt financing in the aggregate amounts described therein, the lender thereunder has committed proceeds of which shall be used in part to lend consummate the amounts set forth therein for the purposes set forth in such Debt Commitment Letter transactions contemplated herein (the “Debt Financing”) and any fee letters related thereto (the “Fee Letters”) (it being understood that such Fee Letters have been redacted to omit the fee amounts and flex provisions provided therein). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement .
(in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the b) The Debt Commitment Letter is in full force and effect and constitutes the legal, is a valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable against the parties thereto in accordance with its terms against Parent andtheir terms, except to the Knowledge extent that: (i) enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other Laws affecting the enforcement of Parentcreditors’ rights generally; and (ii) the availability of equitable remedies, each of the other parties theretoincluding specific performance, is subject to the Bankruptcy and Equity Exceptiondiscretion of the court before which any proceeding thereof may be brought. There are no conditions precedent The aggregate proceeds contemplated to the obligation to make the Debt Financing available to Parent pursuant to be provided by the Debt Commitment Letter, together with Silgan’s and Buyers’ cash on hand and funds available to Silgan and Buyers under their existing revolving credit facility, will be sufficient to consummate the transactions contemplated by this Agreement and to pay all of Silgan’s and Buyers’ related fees and expenses. The obligations of the Lenders to fund the commitments under the Debt Commitment Letter are not subject to any conditions other than as expressly set forth in the Debt Commitment Letter. Assuming Letter or any contingencies that would permit the satisfaction Lenders to reduce the total amount of the conditions set forth in Section 6.01 and 6.02Debt Financing. There are no side letters, understandings or other agreements, contracts or arrangements relating to the net proceeds funding of the full amount of the Debt Financing will, other than as expressly set forth in or contemplated by the aggregate Debt Commitment Letter or the Fee Letters. Silgan and together with Buyers have fully paid any cash and all commitment fees or other funds available fees required to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable paid pursuant to the Financing terms of the Debt Commitment Letter and the Fee Letters, including after giving effect to the maximum amount of any “flex” provisions) for extent the payment of the Required Amountsame are due and payable. As of the date of this Agreement, : (i) the Debt Commitment Letter has not been amended or modified, no such amendment or modification is contemplated, and the respective commitments have not been withdrawn, rescinded or terminated in any way; and (ii) no event has occurred which, that (with or without notice, lapse of time or both, ) would reasonably be expected to constitute a breach, default or breach or result in a failure to satisfy a any condition precedent, in each case, on the part of Parent or, precedent to the Knowledge of Parent, any other parties thereto funding under any term or condition of the Debt Commitment LetterLetter by Silgan or Buyers. As of the date of this Agreement, and Buyers have no knowledge of any facts or circumstances that are reasonably likely to result in: (iii) assuming the satisfaction or waiver any of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent not being satisfied; or any of its Affiliates is a party, other than as expressly set forth (ii) the funding contemplated in the Financing LettersDebt Commitment Letter not being made available to Silgan or Buyers on a timely basis in order to consummate the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Purchase Agreement (Silgan Holdings Inc), Purchase Agreement (WestRock Co)
Financing. At (a) The Parent has delivered to the ClosingCompany true, assuming complete and correct copies of: (i) the executed commitment letter, dated as of May 3, 2010 between Merger Sub, Bank of America, N.A., Banc of America Securities LLC, Banc of America Bridge LLC, Barclays Bank PLC, Credit Suisse Securities (USA) LLC, Credit Suisse AG, Cayman Islands Branch, UBS Loan Finance LLC, UBS Securities LLC (the “Debt Financing Commitment”), pursuant to which, upon the terms and subject to the conditions set forth therein, Bank of America, N.A., Banc of America Securities LLC, Banc of America Bridge LLC, Barclays Bank PLC, Credit Suisse Securities (USA) LLC, Credit Suisse AG, Cayman Islands Branch, UBS Loan Finance LLC, UBS Securities LLC have agreed to lend the amounts set forth therein (the “Debt Financing”) for the purpose of funding the transactions contemplated by this Agreement; and (ii) the executed equity commitment letter, dated as of May 3, 2010 among the Parent, Silver Lake Partners III, L.P., Warburg Pincus Private Equity X, L.P. and Warburg Pincus X Partners, L.P. (collectively, the “Investors”) (the “Equity Financing Commitment” and together with the Debt Financing in accordance Commitment, the “Financing Commitments”), pursuant to which, upon the terms and subject to the conditions set forth therein, each of the Investors has committed to invest the cash amount set forth therein (the “Equity Financing” and together with the Debt Commitment Letter and after giving effect Financing, the “Financing”). None of the Financing Commitments has been amended or modified prior to any “flex” provision the date of this Agreement, and, as of the date hereof, the respective commitments contained in the Debt Commitment Letter Financing Commitments have not been withdrawn, terminated or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds rescinded in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”)respect. As of the date hereof, ▇▇▇▇▇▇ has delivered there are no other agreements, side letters or arrangements to which the Company (a) Parent or Merger Sub is a correct and complete fully executed copy party relating to any of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions Commitments that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely could affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is Financing Commitments are in full force and effect and constitutes constitute the legal, valid and binding obligation obligations of Parent each of the Parent, Merger Sub and, to the Knowledge knowledge of the Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent or other contingencies related to the obligation to make funding of the Debt full amount of the Financing available to Parent pursuant to the Debt Commitment Letter(including any “flex” provisions), other than as expressly set forth in the Debt Commitment LetterFinancing Commitments. Assuming the satisfaction accuracy of the conditions representations and warranties set forth in Section 6.01 3.2 and 6.02performance by the Company of its obligations under this Agreement, the net aggregate proceeds of to be disbursed pursuant to the Debt agreements contemplated by the Financing willCommitments, in the aggregate and together with any the available cash, cash or other funds available to equivalents and marketable securities of the Company, will be sufficient for the Parent and the Surviving Corporation to pay the aggregate Merger SubConsideration and to provide Interactive Data (Europe) Limited with sufficient funds to make the deposit into the Escrow Account of the amount of £53 million contemplated by the UK Pension Transitional Agreement, the amounts to be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable paid pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisionsSection 2.1(d) for the payment of the Required Amountand all related fees and expenses. As of the date of this Agreementhereof, (i) no event has occurred which, which would result in any breach or violation of or constitute a default (or an event which with notice or without notice, lapse of time or both, both would reasonably be expected to constitute become a default default) by the Parent or breach or result in a failure to satisfy a condition precedent, in each case, on Merger Sub under the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment LetterFinancing Commitments, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to the Parent on the Closing Date. The Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date hereof pursuant to the Financing Commitments.
(b) Except as otherwise contemplated by Section 7.4(b), the obligations of the Parent and Merger Sub under this Agreement in connection with are not subject to any conditions regarding the Debt Financing. Except Parent’s, Merger Sub’s, their respective Affiliates’, or any other Person’s ability to obtain financing for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount consummation of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Letterstransactions contemplated hereby.
Appears in 2 contracts
Sources: Merger Agreement (Interactive Data Holdings Corp), Merger Agreement (Interactive Data Corp/Ma/)
Financing. At (a) Parent has received and furnished a copy to the ClosingCompany of a commitment letter (including the Summary of Terms and Conditions annexed thereto, assuming the funding "COMMITMENT LETTER") with The Chase Manhattan Bank and Credit Suisse First Boston (together, the "BANK") dated as of September 28, 2000. The funds which the Bank has agreed, subject to the terms and conditions of the Debt Financing in accordance Commitment Letter, to provide will be sufficient, when taken together with the Debt Commitment Letter and after giving effect other funds available to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, to enable it to provide to the Paying Agent the aggregate Merger Sub Consideration and the Surviving Corporation any other amounts owing as a result of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under transactions contemplated by this Agreement), any and to pay all related fees and expenses pursuant to the Merger (collectively, the "Required Amount").
(b) As of or payable by Parentthe date hereof, (i) the Commitment Letter has not been withdrawn and is in full force and effect and (ii) Merger Sub or the Surviving Corporation and has no reason to believe that any other amounts, including Indebtedness of the conditions set forth in the Commitment Letter will not be satisfied.
(c) Merger Sub has received and furnished a copy to the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions equity commitment letters (the “Required Amount”"Equity Commitment Letters") addressed to Parent from Sponsor and each of the other equity investors in Parent (the "Equity Investors"), each dated as of September 28, 2000 pursuant to which the Equity Investors have committed to make available to Parent certain funds, subject to the terms and conditions contained therein, for the purpose of consummating the transactions contemplated by this Agreement. As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (ai) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt no Equity Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution withdrawn and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Equity Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any Merger Sub has no reason to believe that any of the conditions to the Debt Financing set forth in any Equity Commitment Letter will not be satisfied or that the Debt Financing or any satisfied. Sponsor may arrange for other funds necessary to pay the Required Amount will not be available equity commitment letters addressed to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all executed on substantially the same terms and conditions as the equity commitment fees or other fees to the extent required to be paid letters executed on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there in lieu of the existing equity commitment letters (including in order to cause Sponsor to reduce its equity commitment), so long as the aggregate equity commitments to Parent are no side letters or other agreementsnot less than the equity commitments on the date hereof and Sponsor maintains a controlling interest in Parent.
(d) Upon consummation of the transactions contemplated by this Agreement, contracts or arrangements of any kind relating the Surviving Corporation (i) will not become insolvent, (ii) will not be left with unreasonably small capital, and (iii) will not have incurred debts beyond its ability to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than pay such debts as expressly set forth in the Financing Lettersthey mature.
Appears in 2 contracts
Sources: Merger Agreement (Mascotech Inc), Merger Agreement (Simpson Industries Inc)
Financing. At (a) The Parent Entities have delivered to the ClosingCompany Entities true, assuming complete and correct copies of the fully executed (i) equity commitment letter dated April 2, 2024 from Silver Lake Partners VI, L.P., Silver Lake Partners VII, L.P. and SL SPV-4, L.P. (each an “Equity Investor”, and such letter, the “Equity Commitment Letter”), pursuant to which the Equity Investors have agreed, upon the terms and subject only to the express conditions thereof, to contribute or invest in the Parent Entities the respective amounts set forth therein (collectively, the “Equity Financing”) and (ii) commitment letter dated April 2, 2024 from the Debt Financing Sources party thereto pursuant to which such Debt Financing Sources have committed, upon the terms and subject only to the express conditions thereof, to provide to the Parent Entities or the Merger Subs (or such other entities as directed by the Parent Entities pursuant to the Restructuring Steps) debt financing constituting Credit Facilities (as defined in the Debt Commitment Letter as of the date hereof) in the aggregate principal amounts set forth therein for the purpose of funding a portion of the Required Amount (the “Debt Financing”, which shall include, for the avoidance of doubt, any replacement financing, together with any fee letters related thereto (including all exhibits, schedules and annexes thereto, and the executed fee letters associated therewith (redacted in the manner set forth below)), collectively, the “Debt Commitment Letter”, and, together with the Equity Commitment Letter, the “Commitment Letters”) and (iii) to the extent required pursuant to the terms of this Agreement following a Financing Failure Event, a commitment letter (including all exhibits, schedules and annexes thereto, and the executed fee letters associated therewith (redacted in the manner set forth below)) pursuant to which the parties thereto have committed, upon the terms and subject only to the express conditions set forth therein, to provide to the Parent Entities or the Merger Subs (or such other entities as directed by the Parent Entities pursuant to the Restructuring Steps, if applicable) the Debt Financing (and which, for the avoidance of doubt, shall be considered as a “Debt Commitment Letter” and a “Commitment Letter” hereunder). The Equity Commitment Letter expressly provides that the Company is a third-party beneficiary thereof to the extent provided therein, and the Company is entitled to enforce, directly or indirectly, the Equity Commitment Letter in accordance with its terms against the applicable Equity Investors. The Debt Financing pursuant to the Debt Commitment Letter and the Equity Financing pursuant to the Equity Commitment Letter are collectively referred to in this Agreement as the “Financing.” The fee letters delivered to the Company pursuant hereto shall be accurate and complete copies (subject only to customary redactions of fee amounts, pricing caps and “market flex” related solely to economic terms, and in each case, which redacted information does not relate to or impact conditionality, enforceability or the amount or availability of the Debt Financing).
(b) Except as expressly set forth in the Commitment Letters delivered to the Company Entities on or prior to the date hereof, there are no direct, indirect or other conditions precedent or other contingencies to the obligations of the Debt Financing Sources to fund the full principal amount of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in express terms of the Debt Commitment Letter or to the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation obligations of the aggregate Equity Investors to fund the full amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified Equity Financing in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction (or waiver in accordance with Section 10.11 or Section 10.12) of the conditions set forth in Section 6.01 8.01 and 6.02Section 8.02, as of the net proceeds date hereof, none of the Parent Entities and the Merger Subs have any reason to believe that it will be unable to satisfy any of the conditions to the Financing applicable to it in the Commitment Letters or that the Equity Investors and the Debt Financing willSources will not perform their obligations thereunder, in each case at, prior to or concurrently with the aggregate Effective Time.
(c) Assuming the satisfaction (or waiver in accordance with Section 10.11 or Section 10.12) of the conditions set forth in Section 8.01 and Section 8.02, the Financing, when funded in full in accordance with the Commitment Letters delivered to the Company on or prior to the date hereof, 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, shall provide the Merger Subs or the Company Entities and Company Subsidiaries (if applicable) with immediately available cash prior to or other funds available to Parent and Merger Sub, be sufficient concurrently with the Effective Time (after netting out any applicable fees, expenses, original issue discount, expenses discount and similar premiums and charges payable under the Debt Commitment Letters and any fee letters related thereto, in each case to the extent relevant) sufficient for the Merger Subs, the Parent Entities and the Company Entities and the Company Subsidiaries (if applicable) to pay the aggregate Company Merger Consideration, the OpCo Merger Consideration and the OpCo Profits Units Merger Consideration (other than the Deferred Payments) and any other amounts required to be paid at or prior to the consummation of the Transactions (including the amounts distributed pursuant to Section 7.15) and any fees, costs and expenses of or payable by a Parent Entity or a Merger Sub in connection with the Transactions and the Financing Letters(collectively, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. ”).
(d) As of the date hereof, each of this Agreement, the Commitment Letters are (i) no legal, valid and binding obligations of the Parent Entities and the Merger Subs and, to the Knowledge of the Parent Entities, of each of the other parties thereto (subject, in each case, to the Enforceability Exceptions) and (ii) in full force and effect. No event has occurred whichthat, with or without notice, lapse of time time, or both, would or would reasonably be expected to (x) constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, precedent on the part of the Parent orEntities or the Merger Subs under the terms and conditions of any of the Commitment Letters or (y) result in any portion of the Financing being unavailable or materially delayed at the Effective Time or on the Closing Date. As of the date hereof, the Parent Entities are not aware of any fact, occurrence, or circumstance that makes, or with or without notice, lapse of time, or both, would make, or reasonably be expected to the Knowledge of Parentmake, any other parties thereto of the assumptions, or the representations or warranties of any of the Parent Entities or the Merger Subs, in any of the Commitment Letters inaccurate, incomplete or misleading in any material respect. As of the date hereof, no Debt Financing Source has notified any of the Parent Entities or the Merger Subs of its intention to terminate its commitment under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver not to provide any portion of the conditions set forth in Section 6.01 Debt Financing and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that no Equity Investor has notified any of the conditions Parent Entities or the Merger Subs of its intention to terminate its commitment under the Debt Financing will Equity Commitment Letter or not be satisfied or that to provide any portion of the Debt Financing or any other funds necessary to pay Equity Financing. The Parent Entities and the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (Merger Subs have paid, or caused to be paid) , in full any and all commitment fees or other fees to the extent required to be paid pursuant to the terms of the Commitment Letters on or before the date of this Agreement and will have paid in full any amounts under the Commitment Letters that are due at or prior to the Effective Time and on or prior to the date of this Agreement in connection with the Debt FinancingClosing Date. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as As of the date hereof, there none of the Commitment Letters have been modified, amended, restated, supplemented or otherwise altered, and none of the commitments under any of the Commitment Letters have been withdrawn, terminated, amended, modified, repudiated or rescinded in any respect. There are no other fee letters, engagement letters, side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter Contracts to which the Parent Entities, Merger Subs or any of its their respective Affiliates is a partyparty related to the funding or investing, other than as expressly set forth in applicable, of the Financing Lettersthat could affect the availability of the full amount or conditionality of the Financing in any respect.
(e) The Parent Entities and the Merger Subs acknowledge and agree that, without in any way limiting the effect of Section 10.08, in no event shall the receipt or availability of any funds or financing (including, for the avoidance of doubt, the Financing) by the Parent Entities, the Merger Subs or any other financing or other transaction or other transactions be a condition to any of the Parent Entities’ or the Merger Subs’ obligations hereunder.
Appears in 2 contracts
Sources: Merger Agreement (Endeavor Group Holdings, Inc.), Merger Agreement (Emanuel Ariel)
Financing. At (a) Parent shall use its reasonable best efforts, taking into account, with respect to the ClosingDebt Financing contemplated by the Debt Commitment Letters, assuming the expected timing of the Trigger Date, the Expiration Dates, the Marketing Period and, with respect of the New NewPage Term Loan Facility, the provisions of Section 5.20(d), in respect of each of the facilities contemplated by the Debt Commitment Letters, to take or cause to be taken, all actions to do, or cause to be done, all things necessary or customary to arrange and obtain the Debt Financing, on the terms and conditions (including the flex provisions) described in the Debt Commitment Letters and any Fee Letter, to the extent applicable, including using reasonable best efforts (i) to maintain in effect the Debt Commitment Letters and the Existing Credit Agreement Amendments in accordance with the terms and subject to the conditions thereof until the consummation of the transactions contemplated hereby, (ii) to negotiate and/or enter into the Definitive Debt Financing Documents on or prior to the expiration of the applicable Debt Commitment Letter(s) (each such date, an “Expiration Date”) on the terms specifically set forth in the term sheets and the other exhibits attached to the Debt Commitment Letters (after giving effect to the “market flex” in the Fee Letters), the proviso in the second to last sentence of Section 15 of the Debt Commitment Letters and any upfront, arrangement or agency fees specifically set forth in the Fee Letters, or with the prior written consent of the Company, which consent may not be unreasonably withheld, on terms that are in the good faith judgment of Parent in the aggregate not materially less favorable to each of Parent and the Company than the terms specifically set forth in the term sheets and other exhibits attached to the Debt Commitment Letters (after giving effect to the “market flex” in the Fee Letters), the proviso in the second to last sentence of Section 15 of the Debt Commitment Letters and any upfront, arrangement or agency fees specifically set forth in the Fee Letters, (iii) to satisfy (or if deemed reasonably advisable by Parent, obtain the waiver of) on a timely basis all conditions applicable to Parent in the Debt Financing that are within its control (other than any condition where the failure to be so satisfied is a direct result of the Company’s failure to furnish the information required under this Section 5.12) as set forth in the Debt Commitment Letters and the Existing Credit Agreement Amendments, and to comply with all of its material obligations pursuant to the Debt Commitment Letters and the Existing Credit Agreement Amendments, (iv) to cause the funding of the Debt Financing in accordance with required to consummate the transactions contemplated by this Agreement, (v) to exercise any rights Parent may have under the Debt Commitment Letter and after giving effect Letters to any “flex” provision in extend the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified Expiration Dates in accordance with the terms hereof, of the “Debt Commitment Letter”Letters and to negotiate and agree with the Lenders to further extend such Expiration Dates beyond the commitment periods provided for therein (to the extent specified in Section 5.20(d)), and (vi) to enforce its rights under the Debt Commitment Letters and/or the Existing Credit Agreement Amendments, including by pursuing litigation against the lenders in good faith; provided, however, solely with respect to this clause (vi), that the Trigger Date shall have occurred and all of the conditions to the Lenders’ obligations under the Debt Commitment Letters to the funding of the New NewPage Term Loan Facility or the New NewPage ABL Facility, as applicable, have been satisfied or waived.
(b) a copy Parent shall not agree to any amendments or modifications to, or grant any waivers of, any condition or other provision under the Debt Commitment Letters, the Fee Letters or the Existing Credit Agreement Amendments without the prior written consent of the Company, which consent may not be unreasonably withheld; provided, however, that notwithstanding anything to the contrary herein, Parent may from time to time without the Company’s consent enter into discussions regarding, and may amend, replace, supplement or otherwise modify, or waive any fee letters related of its rights under the Existing Credit Agreement Amendments and/or enter into other arrangements, amendments and agreements of the Debt Commitment Letters or the Fee Letters relating to the Debt Financing, so long as such action would not reasonably be expected to delay or prevent the New NewPage Term Loan Facility Closing Date or the Closing, and the terms (with respect to terms that are specifically set forth in the term sheets and other exhibits attached to the Debt Commitment Letter Letters (after giving effect to the “market flex” in the Fee Letters” and), together with the proviso in the second to last sentence of Section 15 of the Debt Commitment LetterLetters and any upfront, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount arrangement or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes agency fees specifically set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereofFee Letters) are not, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawnaggregate, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available materially less beneficial to Parent pursuant to or the Debt Commitment Letter, other Company than as expressly those set forth in the Debt Commitment Letter. Assuming Letters, the satisfaction Fee Letters and Existing Credit Agreement Amendments as in effect on the date of this Agreement or would not reasonably be expected to materially and adversely affect the value, rights and priorities of the conditions set forth in Section 6.01 Verso First Lien Notes, and 6.02, would not have the net proceeds effect of (I) reducing or being reasonably expected to reduce the aggregate amount of the Debt Financing will(including by changing the amount of fees to be paid or original issue discount of the Debt Financing, unless the financing is increased by such amount), or (II) adversely affect the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letters, the Existing Credit Agreement Amendments or any Fee Letter or, if definitive agreements are executed prior to the Closing Date, the ability of the Company or any other borrower under such definitive agreements related to the Debt Commitment Letters to enforce its rights against the other parties to such definitive agreements or Parent’s ability to timely consummate the transactions contemplated by this Agreement. Parent shall provide the Company with reasonable advance notice of any such amendment, replacement, waiver, modification or agreement. The Company shall not agree to any amendments or modifications to, or grant any waivers of, any condition or other provision under the Definitive Debt Financing Documents without the prior written consent of Parent, which consent may not be unreasonably withheld. The Company shall provide Parent with reasonable advance notice of any such amendment, replacement, waiver, modification or agreement. For purposes of this Agreement, references to “Debt Commitment Letters”, “Fee Letters”, “Existing Credit Agreement Amendments” and the “Definitive Debt Financing Documents” shall include such documents as permitted to be amended, modified or replaced by this Section 5.12. None of Parent or any of its Subsidiaries existing as of the date hereof (including Merger Sub or its successor) may guarantee any Debt Commitment Letters, Definitive Debt Financing Documents or alternative financing obtained in substitution therefor, but for purposes of clarity, such prohibition shall not apply to the Company or any of its Subsidiaries existing as of the date hereof.
(c) Without limiting the generality of Section 5.12(a) and Section 5.12(b), at any time prior to the Closing Date, Parent shall give the Company prompt notice of, and the opportunity to comment on, (A) its knowledge of any material breach or default or termination by any party to any Existing Credit Agreement Amendment or, in the aggregate and together with case of any cash Debt Commitment Letter or Fee Letter, any breach or default or termination by any party thereto or (B) the receipt of any written notice or other funds available written communication from any Person with respect to any material breach, default, termination or repudiation by any party to any Existing Credit Agreement Amendment or, in the case of any Debt Commitment Letter or Fee Letter, any breach, default, termination or repudiation by any party thereto. Parent shall keep the Company informed on a reasonably current basis in reasonable detail of material developments in its efforts to arrange the Debt Financing and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant substantially concurrently therewith provide copies of all final or substantially final Definitive Debt Financing Documents provided to the lenders to the Company. If any portion of the Debt Financing Letters, including becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letters (after giving effect to the maximum amount of any “market flex” provisionsin the Fee Letters) and the Existing Credit Agreement Amendments and such portion is reasonably required to fund the Aggregate Closing Merger Consideration, the Repayment Amount and/or (if applicable in accordance with Section 5.20) the Recapitalization Dividend, Parent shall promptly notify the Company in writing and shall use its reasonable best efforts to obtain substitute financing for such portion as promptly as reasonably practicable following the payment occurrence of such event with terms and conditions not materially less favorable (as determined in the good faith judgment of Parent) to Parent, the Company and to the holders of the Required Amount. As of Verso First Lien Notes than the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, terms and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 the Debt Commitment Letters (after giving effect to the “market flex” in the Fee Letters), the Fee Letters and Section 6.02 the Existing Credit Agreement Amendments. Parent shall deliver to the Company true and taking into account the Marketing Period, Parent does not complete copies of all contracts or other arrangements pursuant to which any such alternative financing source shall have committed to provide any reason to believe that any portion of the conditions Debt Financing. Any alternative financing secured by Parent shall be deemed to be part of the Debt Financing for purposes of this Agreement. The Company shall give Parent prompt notice: (A) of its knowledge of any material breach or default or termination by any party to any Definitive Debt Financing Documents, or (B) of the receipt of any written notice or other written communication from any Person with respect to any material breach, default, termination or repudiation by any party to any Definitive Debt Financing Documents.
(d) At and prior to the Closing or the New NewPage Term Loan Facility Closing Date, as applicable, the Company shall use its reasonable best efforts to provide, and shall cause its Subsidiaries, directors, officers, employees, consultants, agents, financial advisors, attorneys, accountants or other representatives to use reasonable best efforts to provide, in connection with the arrangement of the Debt Financing and the issuance and registration of the Note Consideration, all reasonable cooperation requested by Parent or Merger Sub, as applicable, including (i) execution of customary authorization letters with respect to Offering Documents, participating in a reasonable and customary number of meetings, drafting sessions, presentations, road shows, due diligence sessions and sessions with prospective lenders, investors and rating agencies and assisting Parent in obtaining ratings as contemplated by the Debt Commitment Letters or as otherwise reasonably necessary for the Debt Financing (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 external auditors and advisors), (ii) assisting with the preparation of Offering Documents required in connection with the Debt Financing solely to the extent relating to the Company’s historical financial statements and other information and operations), and requesting any consents of accountants for use of their historical reports in any materials relating to the Debt Financing will (including the execution and delivery of customary representation letters in connection with bank information memoranda relating to the Company’s historical financial statements and other information and reviewing and commenting on Parent’s draft of a business description and “Management’s Discussion and Analysis” of the Company’s (but not the Surviving Corporation’s) financial statements to be satisfied included in offering documents contemplated by the Debt Financing), (iii) preparing and furnishing to Parent and the Lenders as promptly as practicable all Required Information to assist in preparation of the Offering Documents, (iv) providing monthly financial statements within thirty (30) days of the end of each month prior to the Closing Date and providing annual financial statements within seventy five (75) days of the end of fiscal years ending December 31, 2013 and December 31, 2014 with respect to the Company’s year-end financial results for such periods, in all cases prepared in accordance with GAAP applied on a consistent basis and that fairly presents, in all material respects, the consolidated financial position of the Company and its Subsidiaries and the consolidated results of their operations and their cash flows (subject to normal year-end audit adjustments and the lack of footnote disclosures), (v) informing Parent if the Company shall have knowledge of any facts that would likely require the restatement of its financial statements, (vi) assisting in obtaining customary accountant’s reports and comfort letters, field exams, surveys, engineering reports, collateral audits and appraisals (including providing reasonable access at reasonable times to Parent, the Lenders or that any lenders in connection with the Debt Financing and their respective agents to all Company-Owned Real Property for such purposes) and title insurance, and to permit and/or facilitate environmental and other inspections, title information, and other documentation and items related to the Debt Financing, as reasonably requested by Parent, (vii) causing the Company’s independent public accountants to provide all reasonable cooperation and assistance to the extent reasonably requested by Parent (including any permission as may be required from the Company’s independent public accountants in connection with the use of the Required Information), (viii) to the extent reasonably requested by Parent, assisting with the preparation and negotiation of, and facilitating the execution and delivery of, any pledge and security documents, guarantees, loan agreements, indentures, purchase agreements, and other definitive financing documents, legal opinions and officer’s certificates as may be requested by Parent (including delivering a certificate of the Chief Financial Officer of the Company (or any other funds at Parent’s option, a solvency opinion from an independent investment bank or valuation firm of nationally recognized standing) with respect to solvency matters in the form set forth as an annex to the Debt Commitment Letters), (ix) taking customary and commercially reasonable actions necessary to pay (A) permit the Required Amount will not be available prospective Lenders involved in the Debt Financing, upon reasonable advance notice at reasonable times, to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements as of the Closing Date or the New NewPage Term Loan Facility Closing Date, as applicable and (B) assisting Parent on to establish or maintain, effective as of the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or , bank and other fees to the extent required to be paid on or prior to the date of this Agreement accounts and blocked account agreements and lock box arrangements, in each case in connection with the Debt Financing. Except for , (x) using reasonable best efforts to assist Parent to obtain required waivers, consents, estoppels and approvals from other parties to material leases, encumbrances and contracts to which the Fee Letters Company or any of its Subsidiaries is a party and customary engagement letters to arrange discussions among Parent, the Lenders and any lenders in connection with respect to the Debt Financing (none of which reduces the amount with other parties to such material leases, encumbrances and contracts as of the Debt Financing below Closing Date or the Required Amount New NewPage Term Loan Facility Closing Date, as applicable, (xi) taking all legally permissible corporate actions, subject to the occurrence of the Closing Date or adversely affects the conditionalityNew NewPage Term Loan Facility Closing Date, enforceabilityas applicable, termination reasonably requested by Parent that are necessary or availability customary to permit the consummation of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating and to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Letters.permit t
Appears in 2 contracts
Sources: Merger Agreement (NewPage Holdings Inc.), Merger Agreement (Verso Paper Corp.)
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), a) Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a true, correct and complete fully executed copy copies of (a) the debt commitment letter, dated as of even the date herewithhereof, among Parent and the Debt Financing Sources party thereto, including all exhibits, schedules, annexes and amendments to such commitment letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy the fee letter, dated as of any the date hereof, with respect thereto, including all exhibits, schedules, annexes and amendments to such fee letters related to letter (provided that the fee amounts, pricing caps and the rates, amounts and other economic terms included in the “market flex” and certain other economic terms of such fee letter (and its exhibits, schedules, annexes and amendments thereto) may be redacted so long as none of such redacted provisions adversely affect the conditionality, enforceability or termination provisions of the Debt Commitment Letter Letters or reduce the aggregate principal amount of the Debt Financing contemplated hereby), in each case, in effect as of the date of this Agreement (the “Fee Letters” and, together along with the Debt Commitment Letter, the “Financing Debt Letters”) (), pursuant to which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, thereof the Debt Commitment Letter, the lender thereunder has Financing Sources party thereto have severally committed to lend the amounts set forth therein to Parent (the provision of such funds as set forth therein, but subject to the provisions of Section 6.15, the “Debt Financing”) for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”)Letters. As of the date hereofexecution and delivery of this Agreement, neither the Debt Commitment Letter nor any Fee Letter has Letters have not been amended, restated or otherwise modified or waived prior to the execution in any respect (and delivery of this Agreement, no amendment, restatement restatement, modification or waiver is contemplated, other modification is contemplated than customary joinders solely to add Debt Financing Sources) and to the respective Knowledge of Parent (i) the commitments contained in the Debt Commitment Letter Letters have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to and (ii) no such withdrawal, rescission, amendment, restatement or modification has been threatened by any Debt Financing Source party thereto. As of the execution and delivery of this Agreement Agreement, the Debt Letters are in full force and effect and constitute the legal, valid, enforceable and binding obligations of each of Parent and, to the Knowledge of Parent, the other parties thereto (in each caseexcept insofar as such enforceability may be limited by bankruptcy, other than to add lendersinsolvency, financial institutionsreorganization, lead arrangers, bookrunners, syndication agents moratorium or other similar entities Laws of general applicability relating to or affecting creditors’ rights, or by principles governing the availability of equitable remedies, whether considered in a manner contemplated by the Debt Commitment LetterProceeding at law or in equity). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There there are no conditions precedent or contingencies related to the obligation to make funding of the full amount of the Debt Financing available to Parent pursuant to the Debt Commitment LetterLetters, other than as expressly set forth in such letters. The financial resources of Parent are, and will be as of the Debt Commitment Letter. Assuming Closing, in the aggregate, sufficient for the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds all of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing LettersParent’s obligations under this Agreement, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amountaggregate Merger Consideration (including all amounts payable in respect of Company RSUs and Company PSUs under this Agreement), and any other amounts required to be paid in connection with the consummation of the Transactions. As of the date of this Agreement, (i) assuming the satisfaction of the conditions to the Merger set forth in Section 7.1 and Section 7.3, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, default on the part of Parent under the Debt Letters or, to the Knowledge of Parent, any other parties thereto under any term or condition Debt Financing Source party to the Debt Letters. As of the Debt Commitment Letterdate of this Agreement, and (ii) assuming the satisfaction there are no side letters or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Periodother agreements, Parent does not have any reason to believe that any of the conditions Contracts or arrangements related to the Debt Financing will not be satisfied or that the funding of all or any part of the Debt Financing or any other funds necessary to pay than as expressly set forth in the Required Amount will not be available to Parent on the Closing DateDebt Letters. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt FinancingFinancing and satisfied all of the other terms and conditions required to be satisfied by Parent on or prior to the date hereof. Except for As of the Fee Letters date of this Agreement, assuming the satisfaction of the conditions to the Merger set forth in Section 7.1 and customary engagement letters with respect Section 7.3, (i) Parent has no reason to believe that any of the conditions to the Debt Financing will not be satisfied, (none ii) the Parent does not have Knowledge, as of which reduces the date of this Agreement, of any reason that the full amount of the Debt Financing below the Required Amount or adversely affects the conditionalitywill not be made available to Parent, enforceability, termination or availability of the Debt Financing)in each case, as of the date hereoftime at which the Closing is required to occur pursuant to Section 2.3, there are no side letters or other agreements, contracts or arrangements subject to and in accordance with the terms of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Letters.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ a) SpinCo has delivered to the Company (a) RMT Parent a correct true, complete and complete fully executed copy of the debt a commitment letter, dated as of even date herewith, including (i) all exhibits, schedules, annexes attachments and amendments to such commitment letter in effect as of the date of this Agreement and (as may be amended or modified in accordance with the terms hereofii) any associated fee letters (together, the “Debt SpinCo Commitment Letter”) from the lead arrangers, lenders and other financing sources party thereto (b) a copy of any fee letters related together with all additional lead arrangers, lenders and other financing sources added to the Debt SpinCo Commitment Letter (the “Fee Letters” and, together with the Debt or any Alternative SpinCo Commitment Letter, the “Financing LettersSpinCo Lenders”) (which may be redacted ), pursuant to remove the fee amountswhich, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions ofamong other things, the Debt SpinCo Lenders have committed to SpinCo to provide, or cause to be provided, to SpinCo debt financing in the aggregate amount set forth therein (the bank financing contemplated by the SpinCo Commitment Letter, the lender thereunder has committed being referred to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (as the “Debt SpinCo Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, (x) the Debt SpinCo Commitment Letter is has not been amended, restated, waived or modified and (y) the respective commitments contained in full force and effect and constitutes the legalSpinCo Commitment Letter have not been withdrawn, valid and binding obligation of Parent andmodified or rescinded in any respect. Except for the SpinCo Commitment Letter (together with all ancillary documents referenced therein), there are no side letters or other Contracts, instruments or other commitments, obligations or arrangements (whether written or oral) related to the Knowledge of Parent, each funding of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each full amount of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient SpinCo Financing.
(after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisionsb) for the payment of the Required Amount. As of the date of this Agreement, the SpinCo Commitment Letter, in the form so delivered, is in full force and effect and is a legal, valid and binding obligation of SpinCo and, to the knowledge of SpinCo, the other parties thereto (iin each case, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and to general principles of equity). As of the date of this Agreement (assuming the accuracy of the representations and warranties and undertakings of RMT Parent and Merger Sub under this Agreement for such purpose), (x) no event has occurred whichthat, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto SpinCo under any term or condition of the Debt SpinCo Commitment Letter and (y) SpinCo is not aware of any fact, event or any other occurrence that makes any of the representations or warranties of SpinCo in the SpinCo Commitment Letter inaccurate in any material respect. SpinCo has fully paid, or caused to be fully paid, any and all commitment fees, any other fees or any other amounts required by the SpinCo Commitment Letter to be paid on or before the date of this Agreement. On the Distribution Date, assuming the SpinCo Financing is funded in accordance with the SpinCo Commitment Letter, the proceeds of the SpinCo Financing will be sufficient to pay the Internal Reorganization Cash Payments (the “SpinCo Financing Transactions”). Other than as set forth in the SpinCo Commitment Letter, there are no conditions precedent to the funding of the full amount of the SpinCo Financing. As of the date of this Agreement, and (ii) assuming subject to the satisfaction or waiver of all the conditions set forth in Section 6.01 8.01 and Section 6.02 and taking into account the Marketing Period8.02, Parent does not have any SpinCo has no reason to believe that any of the conditions to the Debt SpinCo Financing that are required to be satisfied by it or any other party to the SpinCo Commitment Letter as a condition to the obligations under the SpinCo Commitment Letter will not be satisfied on a timely basis or that the Debt SpinCo Financing or any other funds necessary to pay contemplated by the Required Amount SpinCo Commitment Letter will not be available to Parent on SpinCo immediately prior to, or on, the Closing Distribution Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Letters.
Appears in 2 contracts
Sources: Merger Agreement (Rhino SpinCo, Inc.), Merger Agreement (Genuine Parts Co)
Financing. At (a) Parent has delivered to the ClosingCompany true and complete copies of (i) an executed equity commitment letter (the “Equity Commitment Letter”) from Orient Securities Ruide (Shanghai) Investment Management Co., assuming Ltd. (the funding “Sponsor”), pursuant to which the Sponsor has committed, subject to the terms and conditions therein, to purchase, or cause the purchase of, for cash, equity securities of Parent, up to the aggregate amount set forth therein (the “Equity Financing”), the proceeds of which shall be used to finance the consummation of the Debt Merger and the other Transactions, and (ii) an executed Support Agreement (together with the Equity Commitment Letter, the “Financing Documents”). The Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereto with respect to the provisions therein. Assuming (i) the Equity Financing is funded in accordance with the Debt Equity Commitment Letter Letter, (ii) the contributions, investments and after giving effect other transactions contemplated by the Support Agreement are consummated in accordance with the terms of the Support Agreement, and (iii) the satisfaction of the conditions to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees obligation of Parent and original issue discount), Parent will have immediately available funds in an amount as is necessary Merger Sub to consummate the TransactionsMerger as set forth in Section 7.01 and Section 7.02 or the waiver of such conditions, including Parent and Merger Sub will have available to them, as of or immediately after the Effective Time, all funds necessary for the payment by Parent, Merger Sub and to the Surviving Corporation Paying Agent of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation Exchange Fund and any other amounts, including Indebtedness of the Company and its Subsidiaries, amounts required to be paid in connection with, or as a result of, with the consummation of the Transactions Merger and the other Transactions, and to pay all related Expenses.
(the “Required Amount”). b) As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement Agreement, each of the Financing Documents, in the form so delivered, is in full force and effect and is a legal, valid and binding obligation of Parent and/or Merger Sub (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, applicable and subject to the terms Bankruptcy and conditions ofEquity Exception) and, to the knowledge of Parent, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter other parties thereto (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior subject to the execution Bankruptcy and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment LetterEquity Exception). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each none of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy Financing Documents has been amended or modified and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, such amendment or modification is contemplated (other than as expressly set forth permitted by Section 6.07), the obligations and commitments contained in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth Financing Documents have not been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or restriction is contemplated (other than as permitted by Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient 6.07).
(after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisionsc) for the payment of the Required Amount. As of the date of this Agreementhereof, (i) no event has occurred which, with or without notice, lapse of time or both, would or would be reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent Parent, Merger Sub or, to the Knowledge knowledge of Parent, any other parties thereto thereto, under the Financing Documents; provided, however, that Parent is not making any term representation or condition warranty regarding the effect of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver inaccuracy of the conditions set forth representations and warranties in Section 6.01 and Section 6.02 and taking into account ARTICLE III. As of the Marketing Perioddate of this Agreement, Parent does and Merger Sub do not have any reason to believe that any of the conditions to the Debt Equity Financing will not be satisfied or that the Debt Equity Financing or any other funds necessary to pay the Required Amount will not be available to Parent or Merger Sub at the Effective Time; provided, however, that Parent is not making any representation or warranty regarding the effect of the inaccuracy of the representations and warranties in ARTICLE III, or compliance by the Company with its obligations under this Agreement. The Equity Commitment Letter contains all of the conditions precedent to the obligations of the parties thereunder to make the Equity Financing available to Parent on the Closing Dateterms therein. Parent has fully paid (or caused to The parties hereto agree that it shall not be paid) all commitment fees or other fees a condition to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except Closing for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in Merger Sub to obtain the Financing LettersEquity Financing.
Appears in 2 contracts
Sources: Merger Agreement (Wang Benson Haibing), Merger Agreement (Taomee Holdings LTD)
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ a) The Purchaser has delivered to the Company (a) a correct Seller true and complete fully copies of executed commitment letters with the lenders and arrangers party thereto (collectively, the “Lenders”) (including (i) all exhibits, schedules, annexes and amendments to such letters in effect as of the date of this Agreement (other than any fee letters) and (ii) any fee or engagement letters with the Lenders associated therewith that contain any conditions to funding or “flex” provisions, but excluding provisions related solely to fees and economic terms (other than covenants) agreed to by the parties) (collectively, the “Debt Commitment Letters”), pursuant to which the Lenders have agreed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein for the transactions contemplated by this Agreement (the “Debt Financing”). The Purchaser has also delivered to the Seller a true and complete copy of the debt executed equity commitment letter, dated as of even date herewith, letter (including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement Agreement), dated as of the date of this Agreement, between Parent and the Investor (as may be amended or modified in accordance the “Equity Commitment” and together with the terms hereofDebt Commitment Letters, the “Debt Commitment LetterFinancing Commitments”) and (b) a copy of any fee letters related ), pursuant to which the Investor has agreed, subject to the Debt Commitment Letter terms and conditions set forth therein, to invest in Parent, directly or indirectly, the cash amounts set forth therein for the purpose of funding a portion of the funds required to pay the Closing Payment upon the Closing pursuant to this Agreement (the “Fee LettersEquity Financing” and, together with the Debt Commitment LetterFinancing, the “Acquisition Financing”). The Financing Letters”) (which may Commitments, together with any available cash of Parent and its Subsidiaries, will be redacted sufficient for the Purchaser to remove consummate the fee amounts, economic terms and transactions contemplated by this Agreement on the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms conditions set forth herein. The Purchaser or Parent has fully paid any and conditions ofall commitment fees or other fees required by the Financing Commitments to be paid on or before the date of this Agreement. The Seller is an express third party beneficiary of the Equity Commitment and is entitled to enforce such agreement, and the Investor has agreed, subject in all respects to Section 10.14(b), not to oppose the granting of an injunction, specific performance or other equitable relief on the basis that Parent or the Seller, as applicable, has an adequate remedy at law.
(b) As of the date of this Agreement, the Financing Commitments are in full force and effect and are the legal, valid and binding obligation of the Purchaser (in the case of the Debt Commitment LetterLetters), Parent (in the case of the Equity Commitment) and, to the Purchaser’s Knowledge, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth other parties thereto, enforceable against such parties in such Debt Commitment Letter (the “Debt Financing”)accordance with their terms, except as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally. As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, the obligations of the Lenders and the Investor, as applicable, to fund the commitments under the Financing Commitments are not subject to any conditions other than as expressly set forth in the Financing Commitments. Except as previously disclosed to the Seller, as of the date of this Agreement, there are no amendmentside letters, restatement understandings or other modification is contemplated and agreements, arrangements or other Contracts relating to the respective commitments contained funding or investing, as applicable, of the full amount of the Acquisition Financing other than as expressly set forth in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior Financing Commitments furnished to the execution and delivery of this Agreement (in each case, other than Seller pursuant to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment LetterSection 4.4(a). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge Purchaser’s Knowledge, no event has occurred that (with or without notice, lapse of time, or both) would constitute a breach or default under the Financing Commitments by the Purchaser or Parent, each . As of the other parties theretodate of this Agreement, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming assuming the satisfaction of the conditions set forth in Section 6.01 7.1 and 6.02Section 7.2 of this Agreement, to the net proceeds Purchaser’s Knowledge, there are no facts or circumstances that are reasonably likely to result in (i) any of the Debt Financing will, conditions set forth in the aggregate and together with any cash Financing Commitments not being satisfied or other funds (ii) the Acquisition Financing not being made available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant the Purchaser on a timely basis in order to consummate the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amounttransactions contemplated by this Agreement. As of the date of this Agreement, (iA) no event has occurred whichnone of the Financing Commitments have been amended or modified and (B) the respective commitments contained in the Financing Commitments have not been withdrawn, with modified or without noticerescinded in any respect. Notwithstanding anything in this Agreement to the contrary, lapse the Purchaser acknowledges and agrees that the obtaining of time all or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy any part of the Acquisition Financing is not a condition precedent, in each case, on to Closing or the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition consummation of the Debt Commitment Lettertransactions contemplated by this Agreement, and (ii) assuming that, irrespective and independently of the availability of the Acquisition Financing, the Purchaser shall be obligated to pay the Purchase Price and meet all its financial obligations under this Agreement and the Ancillary Agreements, subject only to the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersArticle VII.
Appears in 2 contracts
Sources: Equity and Asset Purchase Agreement (Liberty Tax, Inc.), Equity and Asset Purchase Agreement (Sears Hometown & Outlet Stores, Inc.)
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a true, correct and complete fully executed copy copies of the duly executed (i) debt commitment letter, dated as of even April 25, 2022, among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., the other financial institutions party thereto, Parent and Acquisition Sub, together with true, correct and complete copies of the executed fee letter related thereto (collectively, including all exhibits, schedules and annexes thereto, the “Bank Debt Commitment Letter”), pursuant to which, and subject to the terms and conditions therein, the Debt Financing Sources party thereto have committed to lend the amounts set forth therein to Acquisition Sub for the purpose of funding a portion of the amounts required to fund the transactions contemplated by this Agreement (the “Bank Debt Financing”), (ii) debt commitment letter, dated as of April 25, 2022, among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., the other financial institutions party thereto and X Holdings III, LLC, a Delaware limited liability company (the “Margin Loan Borrower”), together with true, correct and complete copies of the executed fee letter related thereto (collectively, including all exhibits, schedules and annexes thereto, the “Margin Loan Commitment Letter” and, together with the Bank Debt Commitment Letter, the “Debt Commitment Letters”), pursuant to which, and subject to the terms and conditions therein, the Debt Financing Sources party thereto have committed to lend the amounts set forth therein to the Margin Loan Borrower for the purpose of funding a portion of the amounts required to fund the transactions contemplated by this Agreement (the “Margin Loan Financing” and, together with the Bank Debt Financing, the “Debt Financing”) and (iii) an equity commitment letter from the Equity Investor, dated as of the date herewith, hereof (including all exhibits, schedules, annexes and amendments to such letter in effect thereto as of the date of this Agreement (as may be amended or modified in accordance with the terms hereofAgreement, the “Debt Equity Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment LetterLetters, the “Financing LettersCommitments”) pursuant to which the Equity Investor has committed to invest the amounts set forth therein (which the “Equity Financing” and, together with the Debt Financing, the “Financing”); provided that the fee and other economic provisions (including “flex” provisions) of fee letters may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, a customary manner so long as none of which redactions covers the redacted terms that would (i) reduce the amount of the Debt Financing below the Required Amount amount that is required to pay the Funded Obligations, (ii) impose any new condition or otherwise adversely amend, modify or expand any conditions precedent to the Debt Financing or (iii) affect the conditionalityenforceability or impair the validity of, enforceabilityor prevent, termination impede or availability of delay the Debt Financing). Pursuant to, and subject to the terms and conditions consummation of, the Debt Commitment Letter, Financing at the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”)Closing. As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter each of Parent and Acquisition Sub has been amended, restated or otherwise modified or waived prior accepted and is a party to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Bank Debt Commitment Letter). As of the date of this Agreement, the Debt Margin Loan Borrower has accepted and is a party to the Margin Loan Commitment Letter is Letter, and the Financing Commitments are in full force and effect and constitutes the and, are legal, valid and binding obligation obligations of the Equity Investor, Parent and Acquisition Sub or the Margin Loan Borrower, as applicable, and, to the Knowledge knowledge of the Equity Investor, Parent, Acquisition Sub and the Margin Loan Borrower, each of the other parties thereto, enforceable in accordance with its their respective terms against Parent the Equity Investor, Parent, Acquisition Sub or the Margin Loan Borrower, as applicable, and, to the Knowledge knowledge of ParentParent and Acquisition Sub, against each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date hereof, the Financing Commitments, and the respective commitments or obligations thereunder, have not been withdrawn, terminated, reduced, repudiated, rescinded, amended, supplemented or modified, in any respect, and no such withdrawal, termination, reduction, repudiation, rescission, amendment, supplement or modification is contemplated by the Equity Investor, Parent, Acquisition Sub or the Margin Loan Borrower or, to the knowledge of this AgreementParent and Acquisition Sub, (i) no any other party thereto. None of the Equity Investor, Parent, Acquisition Sub, the Margin Loan Borrower nor any of their respective Affiliates has, nor has, to the knowledge of the Equity Investor, Parent, Acquisition Sub or the Margin Loan Borrower, any other party to the Financing Commitments, committed any breach or threatened breach of the performance, observance or fulfillment of any covenants, conditions or other obligations set forth in, or is in default under, any of the Financing Commitments. No event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to (i) constitute or result in a breach or default on the part of Parent, Acquisition Sub, Margin Loan Borrower or breach any of the other parties thereto (including the Financing Sources) under the Financing Commitments, (ii) constitute or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any or other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions contingency set forth in Section 6.01 and Section 6.02 and taking into account the Marketing PeriodFinancing Commitments, Parent does not have or (iii) otherwise result in any reason to believe that any portion of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will Equity Financing not be being available to Parent on the Closing Date. Parent None of the Equity Investor, Parent, Acquisition Sub or the Margin Loan Borrower, nor any of their respective Affiliates has fully paid any reason to believe (both before and after giving effect to any “flex” provisions contained in the Debt Commitment Letters) that it will be unable to satisfy, on a timely basis (and in any event, not later than the Closing), any condition to be satisfied by it (or caused to be paidotherwise within the Equity Investor’s, Parent’s, Acquisition Sub’s or the Margin Loan Borrower’s any of their respective Representatives’ or Affiliates’ control) all commitment fees contained in the applicable Financing Commitments or other fees that the full amounts committed pursuant to the extent required to applicable Financing Commitments will not be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), available as of the date hereofClosing. There are no conditions precedent or other contingencies or conditions related to the Financing other than those conditions expressly set forth in the unredacted provisions of the Financing Commitments, and there are no side letters letters, understandings or other agreements, contracts Contracts or arrangements of any kind relating to the Debt Commitment Letter Financing Commitments or the Financing that could adversely affect the availability, conditionality, enforceability or amount of the Financing contemplated by the Financing Commitments. As of the date of this Agreement, Parent, Acquisition Sub, the Margin Loan Borrower and/or their respective Affiliates have fully paid any and all commitment fees or other fees or deposits required by the applicable Financing Commitments to which be paid on or before the date of this Agreement. The aggregate proceeds from the Financing are sufficient in amount to provide Parent and Acquisition Sub with the funds necessary to consummate the transactions contemplated hereby and to satisfy their obligations under this Agreement, including for Parent to pay (or cause to be paid) the aggregate amounts payable pursuant to Article II and the payment of all fees, costs and expenses to be paid by Parent related to the transactions contemplated by this Agreement, including such fees, costs and expenses relating to the Financing, and payment of all amounts in connection with the refinancing or repayment of any outstanding indebtedness of the Company required by this Agreement or the Financing Commitments (collectively, the “Funding Obligations”). Notwithstanding anything contained in this Agreement to the contrary, the Equity Investor, Parent and Acquisition Sub each acknowledge and affirm that it is not a condition to the Closing or to any of its obligations under this Agreement that the Equity Investor, Parent, Acquisition Sub and/or any of their respective Affiliates is a partyobtain any financing (including the Debt Financing) for any of the transactions contemplated by this Agreement. As of the date of this Agreement, the Equity Investor owns, directly or indirectly, all the issued and outstanding capital stock and other than as expressly set forth in equity interests of the Financing LettersMargin Loan Borrower.
Appears in 2 contracts
Financing. At (a) Parent has delivered to the Closing, assuming the funding Company an accurate and complete copy of the Debt Financing executed commitment letter, dated the date of this Agreement (together with all exhibits, annexes, schedules and attachments thereto, and each as it may be amended, restated, supplemented, modified or waived in accordance with Section 5.15, the “Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discountLetter”), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by among Parent, Merger Sub ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA, Bank of America, N.A. and the Surviving Corporation of the aggregate amount of the Merger Consideration▇▇▇▇▇▇▇ Lynch, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereofPierce, ▇▇▇▇▇▇ has delivered & ▇▇▇▇▇ Incorporated, pursuant to which the Company (a) a correct and complete fully executed copy of the debt commitment letterFinancing Sources party thereto have committed, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions ofthereof, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein to Parent for purposes of funding the purposes set forth in such Debt Commitment Letter Contemplated Transactions (the “Committed Debt Financing”). As Parent has also delivered to the Company accurate and complete copies of any and all executed fee letter(s) (with only the date hereoffee amounts and other pricing or commercially sensitive amounts that do not adversely affect the enforceability, neither availability or conditionality of, or the aggregate amount of proceeds available under (excluding the effect of original issue discount or upfront fees), the Committed Debt Financing redacted) relating to the Debt Commitment Letter nor (any such fee letter, a “Fee Letter has been amendedLetter”).
(b) Assuming (i) the Committed Debt Financing is funded in accordance with the Debt Commitment Letter, restated or otherwise modified or waived prior to (ii) the execution Company’s compliance with its covenants and delivery of obligations contained in this Agreement, no amendmentsuch that the conditions set forth in Section 6 would be satisfied, restatement or other modification is contemplated and (iii) the respective commitments contained accuracy of the representations and warranties made by the Company in this Agreement, such that the condition set forth in Section 6.1 would be satisfied, the aggregate proceeds from the Committed Debt Financing when funded in accordance with the Debt Commitment Letter have not been withdrawnLetter, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery together with all other sources of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents cash or other similar entities financing available to Parent, will be sufficient for the satisfaction of all of Parent’s and Merger Sub’s payment obligations under this Agreement, including the payment when due of the Merger Consideration, and all costs and expenses of the Contemplated Transactions which become due or payable by the Surviving Corporation or any Acquired Company in a manner connection with the Merger, and any repayment or refinancing of indebtedness (including indebtedness under the Company Credit Agreement) contemplated by the Debt Commitment LetterLetter (collectively, the “Financing Uses”). .
(c) As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes is the legalvalid, valid binding and binding enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required AmountEnforceability Exceptions. As of the date of this Agreement, (i) no event the Debt Commitment Letter (including the commitments contained therein) has occurred whichnot been withdrawn, with terminated, reduced or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, rescinded and (ii) to the Knowledge knowledge of Parent, any other parties thereto under any term no withdrawal, termination, reduction, rescission, amendment or condition modification of the Debt Commitment LetterLetter is contemplated (except for any amendment or modification to add lenders, lead arrangers, bookrunners, syndication agents or similar entities in the manner contemplated by the Debt Commitment Letter and (ii) assuming any reduction in the satisfaction or waiver amount of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to Committed Debt Financing as expressly contemplated by the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing DateCommitment Letter). Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to As of the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect Agreement, to the Debt Financing (none knowledge of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionalityParent, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a partylegal, other than as expressly set forth in valid and binding obligation of the Financing Letters.Sources party thereto, enforceable against such Financing Sources in accordance with its terms, subject to the
Appears in 1 contract
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ a) The Purchaser has delivered to the Company (a) Sellers a correct true and complete fully executed copy of (i) that certain debt commitment letter dated as of July 25, 2014 (the “Debt Commitment Letter”), by and between the Purchaser and Deutsche Bank AG New York Branch, Deutsche Bank Securities Inc. and Barclays Bank PLC (the “Lenders”), pursuant to which the Lenders have agreed, upon the terms and subject to the limited conditions thereof, to provide debt financing in the aggregate amount set forth therein for the purpose of funding the transactions contemplated by this Agreement (the “Debt Financing”) and (ii) the equity commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, among the “Debt Commitment Letter”) Purchaser, the ECP Guarantor and (b) a copy of any fee letters related to the Debt Commitment Letter other parties thereto (the “Fee LettersEquity Commitment Letter,” and, and together with the Debt Commitment Letter, the “Financing Commitment Letters”) (which may be redacted to remove the fee amountsinvest, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions oftherein, cash in the Debt Commitment Letter, the lender thereunder has committed to lend the amounts aggregate amount set forth therein for the purposes set forth in such Debt Commitment Letter purpose of funding the transactions contemplated by this Agreement (being collectively referred to as the “Equity Financing,” and together with the Debt Financing, the “Financing”). As of .
(b) The Purchaser has fully paid any and all commitment fees or other fees in connection with the Financing that are payable on or prior to the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As as of the date of this Agreement, hereof the Debt Commitment Letter is Letters are in full force and effect and constitutes are the legal, valid valid, binding and binding obligation enforceable obligations of Parent the Purchaser and, to the Knowledge of Parentthe Purchaser, each of the other parties thereto, enforceable thereto in accordance with its the terms against Parent and, to the Knowledge of Parent, each of the other parties theretoand conditions thereof, subject to the Bankruptcy qualifications that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, fraudulent transfer, moratorium or similar laws affecting the enforcement of creditors’ rights generally and Equity Exceptionby general principles of equity relating to enforceability (regardless of whether considered in a proceeding at law or in equity) and that equitable remedies, including specific performance, are discretionary and may not be ordered. There are no conditions precedent The Commitment Letters have not been amended or modified prior to the obligation date of this Agreement and no such amendment or modification is contemplated by the Purchaser. No commitment contained in the Commitment Letters has been withdrawn or rescinded in any respect as of the date hereof. The obligations of the Lenders to make fund the Debt Financing available to Parent pursuant to commitments under the Debt Commitment Letter, other than as expressly Letter are not subject to any condition or contingency that is not set forth in the Debt Commitment Letter. Assuming The obligations of ECP Guarantor to fund the satisfaction of commitments under the conditions Equity Commitment Letter are not subject to any condition or contingency that is not set forth in Section 6.01 and 6.02the Equity Commitment Letter. Other than the Commitment Letters, the net proceeds of the Debt Financing willthere are no side letters, in the aggregate and together with any cash agreements, contracts or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant arrangements related to the Financing Letters, including after giving effect to that could increase the maximum conditionality or reduce the amount of any “flex” provisionsthe Financing.
(c) for the payment of the Required Amount. As of the date of this Agreementhereof, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, the Purchaser (or to the Knowledge of ParentPurchaser’s Knowledge, any other parties thereto party thereto) under any term of, or a failure of any condition under, the Commitment Letters or would otherwise be reasonably likely to result in any portion of the Debt Commitment LetterFinancing contemplated thereby becoming unavailable. As of the date of this Agreement, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account 7.2 hereof are satisfied at Closing, the Marketing Period, Parent does not have any Purchaser has no reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt full amount of the Financing or any other funds necessary to pay the Required Amount will not be available to Parent the Purchaser on the Closing Date. Parent has fully paid .
(or caused d) The aggregate proceeds from the Debt Financing and the Equity Financing, when funded, and the Purchaser’s unrestricted cash on hand, will be sufficient to be paid) fund all commitment fees or other fees to of the extent amounts required to be paid on or prior provided by the Purchaser for the consummation of the transactions contemplated by this Agreement, including to pay the date Closing Purchase Price pursuant to Section 1.2 and all other amounts payable by the Purchaser hereunder at Closing and at the time of this Agreement any post-Closing adjustment of the Purchase Price (and under the Commitment Letters and any fee arrangements related thereto), in connection each case in accordance with the Debt Financingterms hereof. Except for In no event shall the Fee Letters and customary engagement letters with respect to receipt by, or the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of any funds or financing to, the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent Purchaser or any of its Affiliates is or any other financing be a partycondition to the Purchaser’s obligation to consummate the transactions contemplated hereunder.
(e) Notwithstanding anything contrary contained herein, other than as expressly the Sellers agree that a breach of any of the representations and warranties set forth in this Section 2.7 shall not result in the Financing Lettersfailure of a condition precedent to the Seller’s obligations under this Agreement, if (notwithstanding such breach) the Purchaser is willing and able to consummate the transaction contemplated herein on the Closing Date.
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Financing. At the Closing, assuming the funding As of the Debt Financing in accordance with date of this Agreement, BidCo has delivered to the Company true, complete and correct copies of (a) the fully executed debt commitment letter, dated as of the date of this Agreement, between BidCo and the financial institutions and other entities party thereto (including the parties to any joinder agreements or amendments joining such financial institutions or other entities to the Debt Commitment Letter and after giving effect to any “flex” provision in financial institutions, lenders or investors of the debt financing contemplated by the Debt Commitment Letter or Letter, collectively, the related fee letters “Debt Financing Sources”) (including all exhibits, schedules and annexes thereto, and the fully executed fee letter, dated as of the date of this Agreement, between BidCo and the Debt Financing Sources party thereto (the “Debt Fee Letter”) redacted in a manner as described below, collectively, the “Debt Commitment Letter” and, together with respect to fees and original issue discountthe Equity Commitment Letter, the “Commitment Letters”), Parent will pursuant to which the Debt Financing Sources party thereto have immediately available funds committed, subject to the terms and conditions set forth therein, to provide the aggregate amounts set forth therein to BidCo (the debt financing contemplated by the Debt Commitment Letter, the “Debt Financing”) and (b) the executed Equity Commitment Letter, pursuant to which the Guarantors have committed, subject to the terms and conditions set forth therein, to invest cash in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions set forth therein (the “Required AmountEquity Financing” and, together with the Debt Financing, the “Financing”). As of the date hereofof this Agreement, ▇▇▇▇▇▇ BidCo has also delivered to the Company (a) a true, complete and correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance Debt Fee Letter with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, “market flex” provisions, “securities demand” provisions and other economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this typea customary manner, none of which redactions covers terms that would (i) reduce the amount of the Debt Financing below the Required Amount amount required to satisfy the Financing Uses (after taking into account any available Equity Financing and available cash of the Company and its subsidiaries), (ii) impose any new condition or adversely affect otherwise amend, modify or expand any conditions precedent to the conditionality, enforceability, termination or availability funding of the Debt Financing). Pursuant to, and subject to Financing or (iii) delay or prevent the terms and conditions of, Effective Date or make the funding of the Debt Commitment Letter, Financing in the lender thereunder has committed amount required to lend satisfy the amounts set forth therein for Financing Uses (after taking into account any available Equity Financing and available cash of the purposes set forth in such Debt Commitment Letter (the “Debt Financing”)Company and its subsidiaries) less likely to occur. As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, (A) none of the Commitment Letters have been amended, supplemented or modified, (B) no such amendment, restatement supplement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawnby BidCo or, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery knowledge of this Agreement BidCo, by the other parties thereto (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by roles that had not executed the Debt Commitment LetterLetter as of the date of this Agreement) and (C) the respective commitments contained in the Commitment Letters have not been withdrawn, terminated, reduced or rescinded and, to the knowledge of BidCo, no such withdrawal, termination or rescission is contemplated. As of the date of this Agreement, except for customary engagement letters and fee credit letters with respect to the Debt Financing (none of which would (I) reduce the amount of the Financing below the amount required to satisfy the Financing Uses (after taking into account any available cash of the Company and its subsidiaries), (II) impose any new condition or otherwise amend, modify or expand any conditions precedent to the funding of the Financing or (III) delay or prevent the Effective Date or make the funding of the Financing in the amount required to satisfy the Financing Uses (after taking into account any available cash of the Company and its subsidiaries) less likely to occur), there are no side letters or Contracts to which BidCo is a party related to the Financing required to satisfy the Financing Uses other than as expressly set forth in the Commitment Letters delivered to the Company on or prior to the date of this Agreement. As of the date of this Agreement, BidCo has fully paid any and all commitment fees or other fees in connection with the Commitment Letters and, for the avoidance of doubt, the Debt Fee Letter that are due and payable on or prior to the date of this Agreement pursuant to the terms of the Debt Commitment Letter and BidCo will, directly or indirectly, continue to pay in full any such amounts required to be paid pursuant to the terms thereof as and when they become due and payable prior to the Effective Date. As of the date of this Agreement, the Debt Commitment Letter is Letters are in full force and effect and constitutes are the legal, valid valid, binding and binding obligation enforceable obligations of Parent BidCo and, to the Knowledge knowledge of Parent, BidCo each of the other parties thereto, enforceable subject, in accordance with its terms against Parent andeach case, to the Knowledge effect of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There As of the date of this Agreement, there are no conditions precedent related to the obligation to make funding or investing, as applicable, of the full amount of the Debt Financing available to Parent pursuant to or the Debt full amount of the Equity Financing contemplated by the Equity Commitment Letter, Letter other than as expressly set forth in the Debt Commitment Letter or the Equity Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amountas applicable. As of the date of this Agreement, (i) BidCo is not in default or breach under the terms and conditions of the Commitment Letters and (ii) to the knowledge of BidCo, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (1) constitute a default or breach or result in on the part of BidCo under any of the Commitment Letters, (2) constitute a failure to satisfy a condition precedent, in each case, on the part of Parent orBidCo under the Commitment Letters, to or (3) assuming the Knowledge of Parentrepresentations and warranties set forth in Article III and as made by the Company are true and correct in all material respects, otherwise result in any other parties thereto under any term or condition portion of the Debt Commitment LetterFinancing required to satisfy the Financing Uses being unavailable on the Effective Date. As of the date of this Agreement, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account to BidCo’s obligations to consummate the Marketing PeriodAcquisition, Parent does not have any BidCo has no reason to believe that any of the conditions to the Debt Financing contemplated by the Commitment Letters will not be satisfied on or prior to the Effective Date or that the Debt full amount of the Financing or any other funds necessary required to pay satisfy the Required Amount Financing Uses will not be made available to Parent BidCo on the Closing Effective Date. Parent has fully paid Assuming the Financing is funded or invested in accordance with the Commitment Letters, BidCo will have on the Effective Date funds sufficient to (x) pay the Cash Consideration, (y) prepay or caused repay any outstanding indebtedness of the Company or its subsidiaries required by this Agreement to be paidprepaid or repaid and (z) satisfy all commitment fees or of the other fees to the extent payment obligations required to be paid on or prior to the date of this Agreement Effective Date by BidCo hereunder in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing transactions contemplated hereby (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financingclauses (x), as of (y) and (z), the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the “Financing LettersUses”).
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Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). a) As of the date hereofof this Agreement, ▇▇▇▇▇▇ Parent has delivered to the Company (a) a correct true and complete fully executed a copy of (i) the executed debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, from Shanghai Pudong Development Bank Co., Ltd., Nanhui Sub-Branch to Merger Sub (the “Debt Commitment Letter”) and (b) a copy of any fee letters related pursuant to which the Debt Financing Sources thereto have agreed to provide the financing in the aggregate amount set forth in such Debt Commitment Letter, subject to the Debt Commitment Letter terms and conditions therein, the proceeds of which shall be used to finance the consummation of the Merger and the other Transactions (the “Fee Debt Financing”), (ii) an executed equity commitment letter, dated as of the date hereof, from each of SINA, Mr. ▇▇▇ ▇▇▇▇ and ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ (the “Equity Commitment Letters” and, and together with the Debt Commitment Letter, the “Financing LettersCommitments”) regarding the proposed equity investments set forth therein (which may the “Equity Financing” and together with the Debt Financing, the “Financing”), and (iii) the Rollover Agreement. Assuming (x) the Financing is funded in accordance with the Financing Commitments, (y) the Shares held by the Rollover Shareholders are cancelled in accordance with the Rollover Agreement, and (z) the satisfaction of the conditions to the obligation of Parent and Merger Sub to consummate the Merger as set forth in Section 7.01 and Section 7.02 or the waiver of such conditions, Parent and Merger Sub will have available to them, as of or immediately after the Effective Time, all funds necessary for the payment to the Paying Agent of the aggregate amount of the Exchange Fund and any other amounts required to be redacted paid in connection with the consummation of the Merger, the Debt Financing and the other Transactions (including any applicable consideration to remove the fee amounts, economic terms and holders of the Notes to repurchase such Notes in accordance with the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt FinancingIndenture pursuant to Section 6.15). Pursuant to, and subject to the terms pay all related fees and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter expenses.
(the “Debt Financing”). b) As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendmenteach of the Financing Commitments, restatement or other modification in the form so delivered, is contemplated in full force and effect and is a legal, valid and binding obligation of, as applicable, Parent, Merger Sub and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter)parties thereto. As of the date of this Agreement, the Debt Commitment Letter Financing Commitments have not been amended or modified, no such amendment or modification is contemplated, the obligations and commitments contained in full force and effect and constitutes the legalFinancing Commitments have not been withdrawn, valid and binding obligation of Parent terminated or rescinded in any respect and, to the Knowledge knowledge of Parent, each of the other parties theretono such withdrawal, enforceable in accordance with its terms against termination or restriction is contemplated. Parent andor Merger Sub has fully paid any and all fees, if any, that are payable on or prior to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to date hereof under the Debt Commitment Letter, Letter and will pay when due all other than as expressly set forth in fees arising under the Debt Commitment LetterLetter as and when they become due and payable thereunder. Assuming Parent has also delivered to the satisfaction Company true, complete and correct copies of all executed fee letters in connection with the conditions set forth in Section 6.01 and 6.02Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted, such fee letters, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient “Fee Letters”).
(after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisionsc) for the payment of the Required Amount. As of the date of this Agreementhereof, (i) no event has occurred which, with or without notice, lapse of time or both, would or would be reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or Merger Sub or, to the Knowledge knowledge of Parent, any other parties thereto thereto, under any term or condition the Financing Commitments. As of the Debt Commitment Letterdate of this Agreement, subject to the accuracy of the representations and (ii) assuming warranties of the Company set forth in Article III hereof and the satisfaction or waiver of the conditions set forth in Section 6.01 7.01 and Section 6.02 and taking into account the Marketing Period7.02 hereof, Parent does and Merger Sub do not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent or Merger Sub at the Effective Time. The Financing Commitments contain all of the conditions precedent to the obligations of the parties thereunder to make the Financing available to Parent or Merger Sub, as applicable, on the Closing Date. Parent has fully paid terms therein.
(or caused to be paidd) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there There are no side letters or other agreements, contracts oral or arrangements of any kind relating written Contracts related to the funding of the full amount of the Debt Commitment Letter Financing to which Parent or any of its Affiliates is a party, party other than (i) as expressly set forth in the Financing LettersDebt Commitment Letter and (ii) customary engagement letter(s), Fee Letter(s) and non-disclosure agreement(s).
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Financing. At (a) Assuming the Closing, assuming the funding satisfaction of the Debt conditions to Purchaser’s obligation to consummate the Acquisition, the amount of funds to be provided pursuant to the Financing Letters, if funded in accordance with the terms of the Financing Letters, will be sufficient at the Closing to (i) pay the Purchase Price and any other repayment or refinancing of Indebtedness required by the Financing Letters or required as a result of the consummation of the Contemplated Transactions, and (ii) pay any and all fees and expenses, and satisfy all other payment obligations, required to be paid or satisfied by Purchaser.
(b) Purchaser has delivered to Clorox Parent a true, complete and correct copy of (i) the executed commitment letter, dated as of the date hereof (the “Equity Financing Letter”), between Purchaser and Guarantor, pursuant to which Guarantor has committed, subject to the terms and conditions thereof, to invest in Purchaser the cash amounts set forth therein (the “Equity Financing”), and (ii) the executed commitment letter, dated as of the date hereof, among Purchaser, JPMorgan Chase Bank, N.A. and J.▇. ▇▇▇▇▇▇ Securities LLC (the “Lenders”, and such commitment letter, “Debt Commitment Letter”, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the counterparties thereto have committed, subject to the terms and conditions thereof, to lend the amount set forth therein (the “Debt Financing” and, together with the Equity Financing, the “Financing”). Purchaser has also delivered to Clorox Parent a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter and after giving effect (it being understood that any such Fee Letter provided to Clorox Parent may be redacted to omit the numerical fee amounts provided therein) (any such Fee Letter, a “flex” provision in the Debt Commitment Letter or the related fee letters Fee Letter”).
(including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation c) As of the aggregate date hereof, the Financing Letters are in full force and effect. The Financing Letters contain no conditions precedent, or other contractual contingencies as between Purchaser and any other party to the Financing Letters, related to the funding of the full amount of the Merger ConsiderationFinancing, other amounts payable pursuant to Article II (including all amounts payable than as set forth in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation Financing Letters and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”)related Fee Letter. As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of ParentPurchaser, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to Purchaser or any of the Knowledge of Parent, any other parties thereto thereto, under any term or condition the Financing Letters. As of the Debt Commitment Letterdate hereof, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any Purchaser has no reason to believe that any of the conditions to the Debt Financing contemplated in the Financing Letters and any related Fee Letter will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be made available to Parent on Purchaser at or prior to the Closing Datetime contemplated hereunder for Closing. Parent There are no side letters or other contracts or arrangements related to the Financing other than the Financing Letters and any related Fee Letter. As of the date hereof, Purchaser has fully paid (paid, or caused to be fully paid) , any and all commitment fees or other fees to the extent required to be paid which are due and payable on or prior to the date hereof pursuant to the terms of this Agreement in connection with the Debt Financing. Except for the Fee Financing Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Lettersrelated Fee Letter.
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Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct true and complete fully executed copy copies of (a) the debt commitment letter, dated as of even the date herewithhereof, among Parent, Bank of America, N.A. and BofA Securities, Inc. (the “Debt Commitment Letter”) and (b) the fee letter, among Parent, Bank of America, N.A. and BofA Securities, Inc., dated as of the date hereof (in each case, as redacted to remove only the fee amounts, pricing caps, the rates and amounts included in the “market flex” and other economic provisions (none of which could affect the conditionality, principal amount or availability of the Debt Financing)), in each case, including all exhibits, schedules, annexes and amendments to such letter letters in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereofcollectively, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (), pursuant to which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions ofthereof, each of the Debt Commitment Letter, the lender thereunder Financing Sources party thereto has severally committed to lend the amounts set forth therein to Parent (the provision of such funds as set forth therein, the “Debt Financing”) for the purposes set forth in such Debt Commitment Letter (the “Letters. The Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has Letters have not been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to . As of the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is Letters are in full force and effect and constitutes constitute the legal, valid and binding obligation of each of Parent and, to the Knowledge of Parent’s Knowledge, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject in each case to the Bankruptcy and Equity ExceptionExceptions. There are no conditions precedent or contingencies directly or indirectly related to the obligation to make funding of the full amount of the Debt Financing available to Parent pursuant to the Debt Commitment LetterLetters, other than as expressly set forth in the Debt Commitment LetterLetters. Assuming Subject to the satisfaction of the terms and conditions set forth in Section 6.01 and 6.02thereof, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Letters will provide Parent and Merger Sub, be together with the Equity Commitment Agreement, with sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant funds at the Closing to the Financing Letterspay all of Parent’s obligations under this Agreement, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required AmountMerger Consideration and all fees and expenses expected to be incurred in connection therewith. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, default on the part of Parent or, to the Knowledge of Parent’s Knowledge, any other parties thereto under any term or condition of party to the Debt Commitment Letter, and Letters under the Debt Letters that would (iia) assuming the satisfaction or waiver of the conditions set forth result in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to in the Debt Letters not being satisfied or (b) otherwise result in the Debt Financing will not be satisfied being available, other than such default or breach that has been waived by the lenders or otherwise cured in a timely manner by Parent or Merger Sub to the satisfaction of the lenders, as the case may be. As of the date of this Agreement, there are no side letters or other agreements, Contracts, arrangements or understandings (written or oral) directly or indirectly related to the funding of the Debt Financing that could affect the conditionality, principal amount or any availability of the Debt Financing other funds necessary to pay than as expressly set forth in the Required Amount will not be available to Parent on the Closing DateDebt Letters. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for As of the Fee Letters date of this Agreement assuming the satisfaction of the conditions set forth in Section 7.01 and customary engagement letters with respect Section 7.03, Parent has no reason to believe that any of the conditions to the Debt Financing (none of which reduces contemplated by the amount Debt Letters will not be satisfied or waived on a timely basis or that the Debt Financing contemplated by the Debt Letters will not be made available on the Closing Date in accordance with the terms of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as Letters. As of the date hereof, there are no side letters or other agreements, contracts or arrangements lender has notified Parent of any kind relating its intention to terminate its obligations under the Debt Commitment Letter Letters or to which Parent or any of its Affiliates is a party, other than as expressly set forth in not provide the Financing LettersDebt Financing.
Appears in 1 contract
Financing. At (a) Purchaser and CCF Holdings LLC, a Delaware limited liability company and the Closingindirect parent entity of Purchaser (“CCF Holdings”), assuming are each a party to and has accepted a fully executed debt commitment letter dated May 18, 2022 (together with all exhibits and schedules thereto, the funding of “Debt Commitment Letter”) from the Debt Financing lenders party thereto (collectively, the “Lenders”)) pursuant to which the Lenders have agreed, subject to the terms and conditions thereof, to provide debt financing in accordance the amounts set forth therein. Purchaser and CCF Holdings are each a party to and has accepted a fully executed equity commitment letter dated May 18, 2022 (together with all exhibits and schedules thereto, the “Equity Commitment Letter” and together with the Debt Commitment Letter, the “Commitment Letters”) from the equity financing source party thereto (the “Equity Financing Source”) pursuant to which the Equity Financing Source has agreed, subject to the terms and conditions thereof, to provide equity financing in the amounts set forth therein. The debt financing committed pursuant to the Debt Commitment Letter is referred to in this Agreement as the “Debt Financing” and after giving effect the equity financing committed pursuant to the Equity Commitment Letter is referred to in this Agreement as the “Equity Financing” and the Debt Financing and the Equity Financing are collectively referred to in this Agreement as the “Financing.”
(b) Purchaser has delivered to Seller a true, complete and correct copy of the executed Commitment Letters and any fee letters related thereto, subject, in the case of such fee letters, to redaction solely of fee and other economic provisions that are customarily redacted in connection with transactions of this type and that could not in any event affect the conditionality, enforceability, availability or amount of the Financing.
(c) Except as expressly set forth in the Commitment Letters, there are no conditions precedent to the obligations of the Lenders or the Equity Financing Source to provide the Financing or any contingencies that would permit the Lenders or the Equity Financing Source to reduce the total amount of the Financing, including any condition or other contingency relating to the amount or availability of the Financing pursuant to any “flex” provision provision. Purchaser does not have any reason to believe that it will be unable to satisfy on a timely basis all terms and conditions to be satisfied by it in any of the Debt Commitment Letter Letters on or prior to the Closing Date, nor does Purchaser have knowledge that any of the Lenders or the related fee letters Equity Financing Source will not perform its obligations thereunder. As of the date of this Agreement, there are no side letters, understandings or other agreements, contracts or arrangements of any kind relating to the Commitment Letters that could affect the availability, conditionality, enforceability or amount of the Financing contemplated by the Commitment Letters.
(including d) The Financing, when funded in accordance with respect to fees the Commitment Letters, will provide Purchaser with cash proceeds on the Closing Date sufficient for the satisfaction of all of Purchaser’s obligations under this Agreement and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate under the TransactionsCommitment Letters, including the payment by Parent, Merger Sub of the Closing Purchase Price and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement)Final Purchase Price, any fees and expenses of or payable by ParentPurchaser, Merger Sub any payments in respect of equity compensation obligations to be made in connection with the Sale, and for any repayment or refinancing of any outstanding indebtedness of Purchaser and its Subsidiaries contemplated by, or required in connection with the transactions described in, this Agreement or the Surviving Corporation and any other Commitment Letters (such amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereofcollectively, the “Debt Sale Amounts”).
(e) The Commitment Letter”Letters constitute (i) the legal, valid and binding obligation of Purchaser and (bii) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment LetterKnowledge of Purchaser, the “Financing Letters”) (which may be redacted to remove the fee amountslegal, economic terms valid and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount binding obligation of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter)parties thereto. As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, which (with or without notice, lapse of time or both, would reasonably be expected to ) could constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on by Purchaser under the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition terms and conditions of the Debt Commitment LetterLetters, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent Purchaser does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied by Purchaser on a timely basis or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent Purchaser on the Closing Datedate of the Closing. Parent Purchaser has fully paid (or caused to be paid) in full any and all commitment fees or other fees to the extent required to be paid pursuant to the terms of the Commitment Letters on or prior to before the date of this Agreement Agreement, and will pay in connection with full any such amounts due on or before the Debt FinancingClosing Date. Except for As of the Fee date of this Agreement, the Commitment Letters have not been modified, amended or altered, no modification or amendment to any of the Commitment Letters is currently contemplated, and customary engagement letters with respect to the Debt Financing (Knowledge of Purchaser, none of which reduces the amount of respective commitments thereunder has been withdrawn or rescinded in any respect, and no withdrawal or rescission thereof is contemplated.
(f) In no event shall the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination receipt or availability of any funds or financing (including, for the Debt avoidance of doubt, the Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent ) by Purchaser or any of its Affiliates is or any other financing or other transactions be a party, other than as expressly set forth in the Financing Letterscondition to any of Purchaser’s obligations under this Agreement.
Appears in 1 contract
Sources: Equity and Asset Purchase Agreement (CURO Group Holdings Corp.)
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), a) Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a true, correct and complete fully executed copy of the debt fully executed commitment letter, dated as of even date herewithApril 29, 2024 (including all exhibits, schedulesschedules and annexes thereto, annexes and amendments as amended, restated, amended and restated, supplemented or replaced from time to such letter in effect as of time after the date of this Agreement (as may be amended or modified in accordance compliance with the terms hereofSection 6.14, the “Debt Commitment Letter”) ), between Parent and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionalitySources party thereto, enforceabilitypursuant to which such Debt Financing Sources have committed, termination or availability of the Debt Financing). Pursuant to, and subject only to the terms and express conditions ofset forth therein, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). Parent has also delivered to the Company a true, correct and complete copy of any fee letter with respect to the Debt Financing (as amended, restated, amended and restated, supplemented or replaced from time to time after the date of this Agreement in compliance with Section 6.14, the “Fee Letter”), which may be redacted solely with respect to fee amounts, economic terms and the “market flex” fee amounts, solely to the extent customary to so redact; provided that none of such redactions or the “market flex” provisions covers terms that would (i) reduce the amount of the Debt Financing available to Parent and Merger Sub at the Acceptance Time to an amount, when aggregated with the amount of Parent Readily Available Funds, less than the aggregate amount of funds necessary to fulfill its obligations to pay the aggregate Offer Price payable pursuant to this Agreement, the aggregate Merger Consideration payable pursuant to this Agreement, and the other payments to be made by Parent, Merger Sub or any of their respective Affiliates pursuant to this Agreement, the Debt Commitment Letter or the Fee Letter and any expenses incurred by Parent, Merger Sub or any of their respective Affiliates in connection with the transactions contemplated by this Agreement, the Debt Commitment Letter or the Fee Letter, and all other fees and expenses required to be paid at Closing by Parent, Merger Sub and their respective Affiliates in connection with the consummation of the Offer and the Merger and the Debt Financing and to cover all potential currency risk with respect to any potential funds to be used for any of the foregoing amounts that is in a currency other than U.S. dollars (collectively, the “Necessary Funds Amount”), (ii) impose any new condition or otherwise adversely amend, modify or expand any conditions precedent to the Debt Financing in a manner that would reasonably be expected to make the timely funding of the Debt Financing or the satisfaction of any condition to the funding thereof materially less likely to occur, (iii) reasonably be expected to prevent, delay or impede Closing, or adversely affect the enforceability, availability or termination of the Debt Commitment Letter, or (iv) have an Adverse Effect on Financing. The Debt Commitment Letter, in the form so delivered, is a legal, valid and binding obligation of Parent (and, to the extent a party thereto, Merger Sub) and, to the knowledge of Parent, of the Debt Financing Sources party thereto. As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has not been amended, restated restated, supplemented, waived or otherwise modified or waived prior to the execution modified, and delivery of this Agreement, no such amendment, restatement restatement, supplement, waiver or other modification is contemplated contemplated, and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescindedterminated, repudiated, amended, restated replaced, amended and restated, supplemented, modified or otherwise modified rescinded in any respect prior to the execution respect, and delivery of this Agreement (in each caseno such withdrawal, other than to add lenderstermination, financial institutionsrepudiation, lead arrangersamendment, bookrunnersreplacement, syndication agents amendment and restatement, supplement, modification or other similar entities in a manner contemplated by the Debt Commitment Letter)rescindment, is pending or contemplated. As of the date of this Agreementhereof, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each effect. As of the other parties theretodate hereof, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no only conditions precedent to the obligation to make Debt Financing commitments or the funding of the full amount of the Debt Financing available to Parent pursuant to on the Closing Date are those contemplated by the express terms of the Debt Commitment Letter. As of the date hereof, other than as expressly assuming that (A) the representations and warranties of the Company contained in Article 4 of this Agreement are true in all material respects in the manner required for Parent to not have a right to terminate this Agreement pursuant to Section 8.1(g) (after giving effect to all cure and grace periods therein), and (B) the Company complies in all material respects with its obligations hereunder in the manner required for Parent to not have a right to terminate this Agreement pursuant to Section 8.1(g) (after giving effect to all cure and grace periods therein) (clause (A) and clause (B), collectively, the “Financing Assumptions”), neither Parent nor Merger Sub (nor any of their respective Affiliates who may be parties thereto) is in default or breach of any of the terms or conditions set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 Letter and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, notice or lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, Merger Sub or any other parties thereto of their respective Affiliates under any term or condition of the Debt Commitment Letter, would reasonably be expected to constitute a failure of any condition to the funding of the Debt Financing on the Closing Date, or would otherwise be reasonably likely to result in any portion of the Debt Financing contemplated by the Debt Commitment Letter to be unavailable, delayed or further conditioned. Parent and its Affiliates have fully paid any and all commitment fees or other fees and amounts required by the terms of the Debt Commitment Letter to be paid on or before the date hereof, and will pay, after the date hereof, all such commitment fees and other fees and amounts as they become due (iiboth before and after giving effect to all “market flex” provisions as if the modifications contemplated by such provisions had been implemented to the maximum extent contemplated thereunder). There are no contracts, agreements, side letters, or arrangements relating to the Debt Financing that would reasonably be expected to (x) affect the availability of the full amount of the Debt Financing contemplated by the Debt Commitment Letter at the Acceptance Time, or (y) cause an Adverse Effect on Financing. Assuming that the Financing Assumptions are satisfied, the proceeds from the Debt Financing, together with Parent Readily Available Funds, constitute all of the financing required to be provided to Parent and Merger Sub in order for Parent to pay the Necessary Funds Amount (both before and after giving effect to all “market flex” provisions set forth in the Debt Commitment Letter as if the modifications contemplated by such provisions had been implemented to the maximum extent contemplated thereunder). As of the date of this Agreement, assuming that the satisfaction Financing Assumptions are satisfied, neither Parent nor ▇▇▇▇▇▇ Sub knows of any facts or waiver circumstances that would reasonably be expected to result in any of the conditions to the funding or availability of the Debt Financing set forth in Section 6.01 the Debt Commitment Letter not being satisfied on a timely basis (and Section 6.02 in any event, prior to or at the Acceptance Time and taking into account the Marketing PeriodClosing on the Closing Date), nor does Parent does not or Merger Sub have any reason to believe that any of the conditions Debt Financing Sources will not perform their respective funding obligations with respect to the Debt Financing will not be satisfied under the Debt Commitment Letter.
(b) Without limiting Section 9.10, in no event shall the receipt or that availability of any funds or financing (including the Debt Financing or any other funds necessary financing) by or to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionalityParent, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent Merger Sub or any of its their respective Affiliates is or any other financing transaction be a party, other than as expressly set forth in condition to any of the Financing Lettersobligations of Parent or Merger Sub hereunder.
Appears in 1 contract
Financing. At (a) Section 4.6 of the ClosingParent Disclosure Letter sets forth true and complete copies of (i) (x) executed rollover commitment letter (the “Rollover Letter”) from the Rollover Investor having sole voting and dispositive power with respect to 17,339,544 shares of the Company, assuming which number of shares, when contributed to Parent under the funding of Rollover Letter, will satisfy all minimum requirements for equity contributions to Parent under the Debt Financing (whether expressed in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter terms of minimum value or the related fee letters (including with respect to fees and original issue discountpercentage of shares), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant towhich, and subject to the terms and conditions ofof which, the Debt Rollover Investors have committed to contribute to Parent the amount of shares of Common Stock set forth therein (the “Rollover Investment”), and (y) a schedule setting forth each Rollover Investor, the number of shares of the Company beneficially owned by and over which such Rollover Investor holds sole voting and dispositive power, and an indication of whether such shares of the Company are held directly or indirectly by such Rollover Investor, and (ii) executed debt commitment letters and related term sheets from ▇▇▇▇▇ Fargo Bank, National Association (the “ABL Commitment Letter”) and Pathlight Capital LP (the “TL Commitment Letter” and together with the ABL Commitment Letter, the lender thereunder has “Debt Commitment Letters” or the “Financing Commitments”) (▇▇▇▇▇ Fargo Bank, National Association and Pathlight Capital LP, the “Lenders”) pursuant to which, and subject to the terms and conditions of which, the Lenders have committed to lend provide Parent and/or Merger Sub with financing in the amounts set forth therein for described therein, the purposes set forth in such Debt Commitment Letter proceeds of which may be used to consummate the Merger and the other transactions contemplated by this Agreement (the “Debt Financing” or the “Financing”). As of the date hereof, neither each of the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated Financing Commitments and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in Rollover Letters is a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent or Merger Sub and, to the Knowledge of the Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent andterms, subject to the Enforceability Exceptions. As of the date hereof, each of the Financing Commitments and the Rollover Letters is in full force and effect, and none of the Financing Commitments or the Rollover Letters has been withdrawn, rescinded or terminated or otherwise amended or modified in any respect. As of the date hereof, to the Knowledge of the Parent, each neither Parent nor Merger Sub is in breach of any of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the material terms or conditions set forth in Section 6.01 and 6.02, the net proceeds any of the Debt Financing will, in Commitments or the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Rollover Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date hereof, to the Knowledge of this AgreementParent with respect to the Company and its Subsidiaries, (i) there is no event has occurred whichfact or occurrence existing on the date hereof that, with or without notice, lapse of time or both, would reasonably be expected to constitute a default (A) make any of the assumptions or breach any of the statements set forth in the Financing Commitments or the Rollover Letters inaccurate, (B) result in a failure any of the conditions in the Financing Commitments or the Rollover Letters not being satisfied, (C) cause any of the Financing Commitments or the Rollover Letters to satisfy a condition precedentbe ineffective or (D) otherwise result in the Financing not being available, or the Rollover Investment not being made, in each case, on a timely basis in order to consummate the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition transactions contemplated by this Agreement. As of the Debt date hereof, neither the Rollover Investors nor any Lender has notified Parent or Merger Sub of its intention to terminate any Financing Commitment Letteror not to provide the Financing, and (ii) assuming none of the satisfaction Rollover Investors has notified Parent or waiver Merger Sub of its intention to terminate any Rollover Letter or not to make the Rollover Investment. Parent has not, without the prior written consent of the Company, amended, modified, supplemented or waived any of the conditions set forth or contingencies to funding contained in any Financing Commitment (including definitive agreements related thereto) or to the Rollover Investment contained in any Rollover Letter, or any other provision of, or remedies under, any Financing Commitment (including definitive agreements related thereto) or any Rollover Letter (except for any increases in the amount of funds available thereunder or the addition of Financing Sources in accordance with the terms thereof, or other relevant entities who did not execute a Financing Commitment or a Rollover Letter as of the date of this Agreement or as otherwise expressly permitted by Section 6.01 5.12(a)). Assuming (1) the Financing is funded in accordance with its terms and Section 6.02 conditions, (2) the Rollover Investment is made in accordance with the terms and taking into account conditions of the Marketing Period, Parent does not have any reason to believe that any Rollover Letters and (3) the satisfaction of the conditions to the Debt Company’s obligation to consummate the Merger set forth in Section 6.3(a), the net proceeds from the Financing will not will, together with the Rollover Investment and other funds available to Parent, be satisfied sufficient to consummate the Merger and the other transactions contemplated by this Agreement, including the payment by Parent and Merger Sub of the Merger Consideration, any fees and expenses of or that payable by Parent, Merger Sub or the Debt Financing Surviving Corporation, and any related repayment or refinancing of any indebtedness of the Company or any of its Subsidiaries, and any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent amounts required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount consummation of the Debt transactions contemplated by this Agreement. Parent or Merger Sub has paid in full any and all commitment or other fees required by any Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), Commitment that are due as of the date hereof, there and will pay, after the date hereof, all such commitments and fees as they become due. There are no side letters letters, understandings or other agreements, contracts agreements or arrangements of any kind relating to the Debt Commitment Letter Financing (except for customary fee letters and engagement letters which do not contain any additional conditions to closing or other agreements relating to the availability of the full amount of the Financing, and a complete copy of the fee letter has been made available to the Company with customary redactions of fee amounts, pricing caps, “market flex,” other economic terms and certain other terms, none of which redacted provisions would adversely affect the conditionality or aggregate principal amount of the Financing) or the Rollover Investment to which Parent Parent, Merger Sub or any of its their respective Affiliates is are a partyparty that relate to the amount, availability or conditions of the Financing or the Rollover Investment, other than the Financing Commitments and the Rollover Letters. There are no conditions precedent related to the funding of the full amount of the Financing, other than as expressly explicitly set forth in the Financing Commitments, and there are no conditions precedent related to the contribution of the full amount of the Rollover Investment, other than as explicitly set forth in the Rollover Letters. Assuming the satisfaction of the conditions to the Company’s obligation to consummate the Merger set forth in Section 6.3(a), neither Parent nor Merger Sub has any reason to believe that it will be unable to satisfy on a reasonably timely basis any conditions to the funding of the full amount of the Financing or the contribution of the full amount of the Rollover Investment, or that the Financing will not be available to, or that the Rollover Investment will not be contributed to, Parent or Merger Sub on the Closing Date. For the avoidance of doubt, it is not a condition to Closing under this Agreement, nor to the consummation of the Merger, for Parent or Merger Sub to obtain the Financing, the Rollover Investment or any alternative financing.
(b) Neither Parent, Merger Sub nor any of their Affiliates has entered into any Contract, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing that would prevent or hinder such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent, Merger Sub nor any of their Affiliates has caused or induced any Person to take any action that, if taken by Parent and/or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.6(b).
Appears in 1 contract
Sources: Merger Agreement (Stein Mart Inc)
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), a) Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct true and complete copies of (i) fully executed copy of commitment letters, from Industrial Bank Co., Ltd. Hong Kong Branch (the debt commitment letter, dated as of even date herewith, “Financing Bank”) (including all exhibits, schedules, and annexes thereto, and amendments the executed fee letter (if any) associated therewith and referenced therein (except that the commitment letters (including the term sheet annexed thereto) and the fee letter are subject to such letter in effect as redactions of the date of this Agreement (commercially sensitive information)), as may be amended amended, supplemented or modified in accordance with the terms hereof, collectively, the “Debt Commitment LetterFinancing Commitments”) and (b) a copy of any fee letters related ), pursuant to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionalitySources party thereto have committed, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions ofset forth therein, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As ) for the purposes of funding the transactions contemplated by this Agreement, and related fees, costs and expenses, (ii) the executed commitment letters, dated as of the date hereof, neither between Merger Sub and each of the Debt Commitment Letter nor any Fee Letter has been Investors, respectively (including all exhibits, schedules and annexes thereto (if any), as may be amended, restated supplemented or otherwise modified or waived from time to time in accordance with the terms hereof, collectively, the “Equity Commitment Letters”), pursuant to which such Investor has committed, subject to the terms and conditions set forth therein, to invest up to the cash amount set forth therein (collectively, the “Cash Financing”) and (iii) the Support Agreement (together with the Equity Commitment Letters, collectively, the “Equity Financing Commitments” and together with the Debt Financing Commitments, collectively, the “Financing Commitments”), pursuant to which, subject to the terms and conditions therein, the Rollover Securityholder have committed to contribute to Parent, immediately prior to the execution Effective Time, the number of Rollover Securities set forth therein and delivery of to consummate the Merger and other transactions contemplated by this Agreement] (together with the Cash Financing, collectively, the “Equity Financing” and together with the Debt Financing, collectively, the “Financing”). Each Equity Financing Commitment provides that the Company is a third party beneficiary thereof and entitled to enforce such Equity Financing Commitment in accordance with the terms and conditions set forth therein. The Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Parent, Merger Sub and each of the other parties thereto, in each case, subject to the Bankruptcy and Equity Exception.
(b) None of the Financing Commitments has been amended or modified, no amendmentsuch amendment or modification (other than as permitted under Section 6.11) is contemplated, restatement or other modification is contemplated the obligations and the respective commitments contained in the Debt Commitment Letter Financing Commitments have not been withdrawn, rescinded, amended, restated terminated or otherwise modified rescinded in any respect and no such withdrawal, termination or rescission (other than as permitted under Section 6.11) is contemplated. Parent or Merger Sub has fully paid any and all fees that are payable on or prior to the execution date hereof under the Financing Commitments and delivery of this Agreement will pay when due all other fees arising thereunder as and when they become due and payable thereunder.
(c) Except as expressly set forth in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). Financing Commitments and Buyer Group Contracts, there are no side letters, contract, agreement, arrangement, commitment to which Parent or Merger Sub is a party that imposes conditions, affects the availability of or modifies, amends or expands the conditions to the funding of the Financing (except for (x) those as expressly set forth in the Financing Commitments and (y) customary engagement letters and non-disclosure agreements that do not impact the conditionality or amount of the Financing) or the transactions contemplated hereby.
(d) As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or Merger Sub or, to the Knowledge knowledge of Parent, any other parties thereto thereto, under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver Financing Commitments. The Financing Commitments contain all of the conditions set forth in Section 6.01 precedent to the obligations of the parties thereunder to make the applicable Financing available to Parent or Merger Sub on the terms and Section 6.02 conditions therein. As of the date hereof, ▇▇▇▇▇▇ and taking into account the Marketing Period, Parent does not ▇▇▇▇▇▇ Sub have any no reason to believe that any of the conditions to the Debt Financing contemplated by the Financing Commitments will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent or Merger Sub on the Closing Date. Assuming (x) the conditions in Section 7.1 and Section 7.2 are satisfied or waived, and (y) the Financing is funded in accordance with the Financing Commitments, Parent has fully paid and Merger Sub will have on the Closing Date funds sufficient to (or caused to be paidi) pay the aggregate Per Share Merger Consideration and the other payments under Article II and (ii) pay any and all commitment fees or other fees to the extent and expenses required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for Merger, the Fee Letters other transactions contemplated by this Agreement and customary engagement letters with respect to the Debt Financing (none of which reduces collectively, the amount of the Debt Financing below the “Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt FinancingAmount”), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Letters.
Appears in 1 contract
Sources: Merger Agreement (Hollysys Automation Technologies, Ltd.)
Financing. (a) At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in have, on an amount as is necessary unconditional basis, cash on hand sufficient to fund the performance of Parent’s and Merger Sub’s obligations hereunder to consummate the Transactions, including the payment transactions contemplated by this Agreement and to satisfy all other costs and expenses of Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant their affiliates arising in connection therewith. Parent has delivered to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiariesthe Stockholder Representative a true, required to be paid in connection withcomplete and correct copy of (i) the respective executed commitment letters, or dated as of the date hereof, between Parent, on the one hand, and each Limited Guarantor and Opportunity Partners Offshore-B Co-Invest AIV, L.P., a result ofCayman Islands limited partnership, on the other hand, and attached hereto as Exhibit E (collectively, the consummation of “Equity Financing Letters”), pursuant to which the Transactions Limited Guarantors have committed, upon the terms and subject to the conditions set forth therein, to invest in Parent the cash amounts set forth in the Equity Financing Letters (the “Required AmountEquity Financing”), and (ii) the executed commitment letter, dated as of the date hereof, between Parent and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Lending Partners LLC, Deutsche Bank Securities Inc., Deutsche Bank Trust Company Americas and Deutsche Bank AG Cayman Islands Branch (collectively, the “Lender Parties”) and attached hereto as Exhibit F (the “Debt Financing Letter” and together with the Equity Financing Letters, the “Financing Commitments”), pursuant to which the Lender Parties have committed, upon the terms and subject to the conditions set forth therein, to lend the amounts set forth in the Debt Financing Letter (the “Debt Financing” and together with the Equity Financing, the “Financing”).
(b) Neither of the Financing Commitments have been amended or modified prior to the date of this Agreement, and, as of the date hereof, the respective commitments contained in the Financing Commitments have not been withdrawn, terminated or rescinded in any respect. As of the date hereof, ▇▇▇▇▇▇ has delivered there are no other agreements, side letters or arrangements to the Company (a) which Parent or Merger Sub is a correct and complete fully executed copy party relating to either of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions Commitments that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely could affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is Financing Commitments are in full force and effect and constitutes constitute the legal, legally valid and binding obligation obligations of Parent Parent, of the other parties to the Equity Financing Letters and, to the Knowledge knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity ExceptionDebt Financing Letter. There are no conditions precedent or other contractual contingencies between Parent and any other party to the obligation Financing Commitments or the executed fee letter, dated as of the date hereof, between Merger Sub and the Lender Parties a redacted copy of which is attached hereto as Exhibit G (the “Debt Fee Letter”), related to make the funding of the full amount of the Financing (including any “flex” provisions contained in the Debt Financing available to Parent pursuant to the Debt Commitment Fee Letter), other than as expressly set forth in the Financing Commitments and the Debt Commitment Fee Letter. Assuming The proceeds to be disbursed pursuant to the satisfaction of agreements contemplated by the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing willCommitments, in the aggregate and together with any the available cash, cash or other funds available to Parent equivalents and Merger Submarketable securities of the Company, will be sufficient (after netting out any fees, original issue discount, for Parent to pay the Closing Payments and all related fees and expenses and similar premiums and charges payable pursuant to at the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required AmountClosing. As of the date of this Agreementhereof, (i) no event has occurred which, which would result in any breach or violation of or constitute a default (or an event which with notice or without notice, lapse of time or both, both would reasonably be expected to constitute become a default or breach or result in a failure to satisfy a condition precedent, in each case, on default) by Parent under the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment LetterFinancing Commitments, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing Commitments will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect hereof pursuant to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersCommitments.
Appears in 1 contract
Sources: Merger Agreement (Transunion Corp.)
Financing. At the Closing, assuming the funding A Subsidiary of the Debt Financing Purchaser, Fat Brands Royalty I, LLC, is a party to that certain Base Indenture, dated as of March 6, 2020 (the “Indenture”) (a true and correct copy of which has been provided to the Company), under which Fat Brands Royalty I, LLC may enter into a supplement to the Indenture (a “Series Supplement”) to issue additional secured note or notes (the “Additional Notes”) in accordance an amount (determined net of any reserves or other deductions required by the terms of the Indenture and such Supplement, applicable fees, expenses, premiums and other changes provided by the terms of such Indenture or the Series Supplement) sufficient to finance the full Enterprise Value and to make all other payments required by the terms hereof, to pay all related fees and expenses in connection with this Agreement and the Debt Commitment Letter transactions contemplated hereby and after to otherwise consummate the transactions contemplated hereby (the “Financing”). The Purchaser has engaged in discussions with a potential purchaser of the full amount of such Additional Notes, and has a reasonable expectation that such purchaser will purchase the full amount of the Additional Notes. Under the terms of the Indenture and the other agreements contemplated thereby, Fat Brands Royalty I, LLC may utilize the net proceeds of such note issuance to pay, or remit to the Purchaser to allow the Purchaser to pay, the Enterprise Value and to make all other payments required by the terms hereof, to pay all related fees and expenses in connection with this Agreement and the transactions contemplated hereby and to otherwise consummate the transactions contemplated hereby, and neither Fat Brands Royalty I, LLC nor the Purchaser shall use the proceeds of such note issuance other than for the purposes described in this sentence. The Purchaser has no reason to believe that the conditions to the issuance of the Additional Notes set forth in the Indenture and the other agreements contemplated thereby will not be satisfied. Upon giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation issuance of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares Additional Notes and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parenthereby, each of (1) Fat Brands Royalty I, LLC and (2) the other parties thereto, enforceable in accordance with Purchaser and its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than consolidated subsidiaries taken as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, a whole will not (i) no event has occurred whichbe insolvent (either because its financial condition is such that the sum of its debts is greater than the fair value of its assets or because the present fair salable value of its assets will be less than the amount required to pay its probable liability on its debts as they become absolute and matured), with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction have unreasonably small capital with which to engage in its business or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not (iii) have any reason incurred or plan to believe that any of the conditions incur debts beyond its ability to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Lettersrepay such.
Appears in 1 contract
Financing. At The cash consideration payable to the Closing, assuming Biffa Shareholders under the funding terms of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect Acquisition will be financed by a combination of: (a) indirect capital contributions to any “flex” provision in the Debt Commitment Letter or the related fee letters Bidco by funds managed by affiliates of ECP (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions with which an equity commitment letter has been entered into with Bidco) (the “Required AmountEquity Injection”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related term facility in an amount equal to £100 million to be provided to Bidco by the Debt Commitment Letter Original Lenders (the “Fee LettersTerm Facility”), the proceeds of which may, in summary, be used to (i) fund the cash consideration payable to Biffa Shareholders under the terms of the Acquisition; (ii) pay fees, costs and expenses in connection with the Term Facility, RCF Facility (as defined below) and the Acquisition (together being the “Acquisition Costs”); and (iii) refinance certain existing indebtedness of the Biffa Group. Following the Effective Date, all or part of the Term Facility may be novated to, assumed by, or otherwise transferred to, a member of the Biffa Group. In addition the Original Lenders will provide a multi-currency revolving credit facility to Bidco in an amount equal to £225 million which can be used for, amongst other things, financing or refinancing certain indebtedness of the Biffa Group, the payment of Acquisition Costs (provided that no more than £75 million may be applied towards such purpose), general corporate purposes and working capital needs (the “RCF Facility” and, together with the Debt Commitment LetterTerm Facility, the “Financing LettersFacilities”) (which ). The RCF Facility may also be made available to certain members of the Biffa Group following the Effective Date. Bidco has entered into a facilities agreement with the Original Lenders as original lenders, the Arrangers as arrangers and National Westminster Bank plc as agent documenting the Term Facility and the RCF Facility, in each case on a certain funds basis customary for acquisitions financings of this nature. The Equity Injection may be redacted partially financed by a short term bridge facility in an amount up to remove the fee amounts£200 million to be provided by Barclays Bank PLC to ECP V Bears Aggregator, economic terms LP, a newly incorporated Delaware limited partnership which is an indirect holding company of Bidco and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter is controlled by funds managed by ECP (the “Debt FinancingEquity Bridge Facility”). As of the date hereofThe Equity Bridge Facility will be available on a certain funds basis. Barclays, neither the Debt Commitment Letter nor any Fee Letter has been amendedin its capacity as financial adviser to Bidco, restated or otherwise modified or waived prior is satisfied that sufficient cash resources are available to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior Bidco to the execution and delivery of this Agreement (in each case, other than enable it to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is satisfy in full force and effect and constitutes the legal, valid and binding obligation of Parent and, consideration payable to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement Biffa Shareholders in connection with the Debt FinancingAcquisition. Except for Further information on the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount financing of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly Acquisition will be set forth out in the Financing LettersScheme Document.
Appears in 1 contract
Sources: Co Operation Agreement
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), a) Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a true, correct and complete fully executed copy of copies of
(a) the debt commitment letter, dated as of even the date herewithhereof, among Parent and the Debt Financing Sources party thereto, including all exhibits, schedules, annexes and amendments to such commitment letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy the fee letter, dated as of any the date hereof, with respect thereto, including all exhibits, schedules, annexes and amendments to such fee letters related to letter (provided that the fee amounts, pricing caps and the rates, amounts and other economic terms included in the “market flex” and certain other economic terms of such fee letter (and its exhibits, schedules, annexes and amendments thereto) may be redacted so long as none of such redacted provisions adversely affect the conditionality, enforceability or termination provisions of the Debt Commitment Letter Letters or reduce the aggregate principal amount of the Debt Financing contemplated hereby), in each case, in effect as of the date of this Agreement (the “Fee Letters” and, together along with the Debt Commitment Letter, the “Financing Debt Letters”) (), pursuant to which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, thereof the Debt Commitment Letter, the lender thereunder has Financing Sources party thereto have severally committed to lend the amounts set forth therein to Parent (the provision of such funds as set forth therein, but subject to the provisions of Section 6.15, the “Debt Financing”) for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”)Letters. As of the date hereofexecution and delivery of this Agreement, neither the Debt Commitment Letter nor any Fee Letter has Letters have not been amended, restated or otherwise modified or waived prior to the execution in any respect (and delivery of this Agreement, no amendment, restatement restatement, modification or waiver is contemplated, other modification is contemplated than customary joinders solely to add Debt Financing Sources) and to the respective Knowledge of Parent (i) the commitments contained in the Debt Commitment Letter Letters have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to and (ii) no such withdrawal, rescission, amendment, restatement or modification has been threatened by any Debt Financing Source party thereto. As of the execution and delivery of this Agreement Agreement, the Debt Letters are in full force and effect and constitute the legal, valid, enforceable and binding obligations of each of Parent and, to the Knowledge of Parent, the other parties thereto (in each caseexcept insofar as such enforceability may be limited by bankruptcy, other than to add lendersinsolvency, financial institutionsreorganization, lead arrangers, bookrunners, syndication agents moratorium or other similar entities Laws of general applicability relating to or affecting creditors’ rights, or by principles governing the availability of equitable remedies, whether considered in a manner contemplated by the Debt Commitment LetterProceeding at law or in equity). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There there are no conditions precedent or contingencies related to the obligation to make funding of the full amount of the Debt Financing available to Parent pursuant to the Debt Commitment LetterLetters, other than as expressly set forth in such letters. The financial resources of Parent are, and will be as of the Debt Commitment Letter. Assuming Closing, in the aggregate, sufficient for the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds all of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing LettersParent’s obligations under this Agreement, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amountaggregate Merger Consideration (including all amounts payable in respect of Company RSUs and Company PSUs under this Agreement), and any other amounts required to be paid in connection with the consummation of the Transactions. As of the date of this Agreement, (i) assuming the satisfaction of the conditions to the Merger set forth in Section 7.1 and Section 7.3, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, default on the part of Parent under the Debt Letters or, to the Knowledge of Parent, any other parties thereto under any term or condition Debt Financing Source party to the Debt Letters. As of the Debt Commitment Letterdate of this Agreement, and (ii) assuming the satisfaction there are no side letters or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Periodother agreements, Parent does not have any reason to believe that any of the conditions Contracts or arrangements related to the Debt Financing will not be satisfied or that the funding of all or any part of the Debt Financing or any other funds necessary to pay than as expressly set forth in the Required Amount will not be available to Parent on the Closing DateDebt Letters. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt FinancingFinancing and satisfied all of the other terms and conditions required to be satisfied by Parent on or prior to the date hereof. Except for As of the Fee Letters date of this Agreement, assuming the satisfaction of the conditions to the Merger set forth in Section 7.1 and customary engagement letters with respect Section 7.3, (i) Parent has no reason to believe that any of the conditions to the Debt Financing will not be satisfied, (none ii) the Parent does not have Knowledge, as of which reduces the date of this Agreement, of any reason that the full amount of the Debt Financing below the Required Amount or adversely affects the conditionalitywill not be made available to Parent, enforceability, termination or availability of the Debt Financing)in each case, as of the date hereoftime at which the Closing is required to occur pursuant to Section 2.3, there are no side letters subject to and in accordance with the terms of the Debt Letters.
(b) Parent is not entering into this Agreement with the intent to hinder, delay or defraud either present or future creditors of the Company or any of its Subsidiaries. Each of Parent and the Surviving Corporation will be Solvent as of immediately after the consummation of the Merger and the other agreementsTransactions. For the purposes of this Agreement, contracts or arrangements the term “Solvent”, when used with respect to any Person, means that, as of any kind relating date of determination, (i) the amount of the “fair saleable value” of the assets of such Person will, as of such date, exceed the sum of (A) the value of all “liabilities of such Person, including contingent and other liabilities,” as of such date, as such quoted terms are generally determined in accordance with applicable Laws governing determinations of the insolvency of debtors, and (B) the amount that will be required to pay the Debt Commitment Letter probable liabilities of such Person, as of such date, on its existing debts (including contingent and other liabilities) as such debts become absolute and mature, (ii) such Person will not have, as of such date, an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged following such date, and (c) such Person will be able to pay its liabilities, as of such date, including contingent and other liabilities, as they mature. For purposes of this definition, “not have an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged” and “able to pay its liabilities, as of such date, including contingent and other liabilities, as they mature” means that such Person will be able to generate enough cash from operations, asset dispositions or refinancing, or a combination thereof, to meet its obligations as they become due.
(c) Without limiting Section 9.9, in no event shall the receipt or availability of any funds or financing by or to Parent or any of its Affiliates is or any other financing transaction be a party, other than as expressly set forth in condition to any of the Financing Lettersobligations of Parent or Merger Sub hereunder.
Appears in 1 contract
Sources: Merger Agreement
Financing. At (a) ▇▇▇▇▇ Parent has provided Trican Parent with a true and complete copy of: (a) a debt commitment letter (including all annexes, exhibits, schedules and other attachments thereto), dated as of the Closingdate hereof, assuming by and among Buyer, KGH Intermediate Holdco II, LLC and ▇▇▇▇ Bank (the funding “Term Debt Commitment”), (b) a debt commitment letter (including all annexes, exhibits, schedules and other attachments thereto), dated as of the date hereof, by and among ▇▇▇▇▇ Parent and PNC Bank, National Association (the “Incremental Debt Commitment” and collectively, the “Debt Financing Commitment”), pursuant to which, upon the terms and subject to the conditions set forth therein the lenders have agreed to lend an incremental $100,000,000 in the aggregate (at least $75,000,000 to be in the form of an incremental term loan) to ▇▇▇▇▇ Parent and its Subsidiaries (the “Debt Financing”), (c) the Equity Financing Commitment (together with the Debt Financing Commitment, the “Financing Commitments”), pursuant to which, upon the terms and subject to the conditions set forth therein, Sponsor has committed to invest, directly or indirectly, in accordance ▇▇▇▇▇ Parent $200,000,000 (the “Equity Financing” and together with the Debt Commitment Letter Financing, the “Financing”), and after giving effect to any “flex” provision in each case, for the purposes of financing, in the Debt Commitment Letter aggregate, the transactions contemplated by this Agreement and for working capital purposes, and (d) the Limited Guarantee, pursuant to which, upon the terms and subject to the conditions set forth therein, Sponsor has committed to guarantee the payment of the Tier One Termination Fee and the Tier Two Termination Fee, as applicable, in the event that ▇▇▇▇▇ Parent is obligated to pay the Tier One Termination Fee or the related fee letters (including with respect Tier Two Termination Fee pursuant to fees the terms of this Agreement and original issue discount), Parent will have immediately available funds fails to do so in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation accordance herewith. As of the aggregate amount date hereof, there are no side letters or other written agreements or arrangements, relating (directly or indirectly) to the Financing or the Financing Commitments to which ▇▇▇▇▇ Parent or any of the Merger Considerationits Affiliates is a party, other amounts payable pursuant than the Debt Financing Fee Letter (a customarily redacted copy of which has been provided to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Trican Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇each of the Financing Commitments is, to ▇▇▇▇▇ has delivered to the Company (a) a correct Parent’s knowledge, in full force and complete fully executed copy effect, and neither of the debt commitment letterFinancing Commitments has been amended, dated as of even date herewithmodified, including all exhibits, schedules, annexes and amendments to such letter withdrawn or rescinded in effect as any respect. Each of the date of this Agreement Financing Commitments (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount case of the Debt Financing below the Required Amount or adversely affect the conditionalityCommitment, enforceabilityassuming due authorization, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement parties thereto (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter▇▇▇▇▇ Parent). As of the date of this Agreement, the Debt Commitment Letter ) is in full force and effect and constitutes the legal, valid and binding obligation of ▇▇▇▇▇ Parent and, to the Knowledge of ▇▇▇▇▇ Parent’s knowledge, each of the other parties thereto, enforceable in accordance with its the terms against Parent andand conditions thereof, except to the Knowledge extent that enforceability may be limited by bankruptcy, insolvency, reorganization or other similar Laws affecting the enforcement of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exceptioncreditors’ rights generally. There are no conditions precedent or other contractual contingencies (directly or indirectly) related to the obligation to make funding or investing, as applicable, of the Debt full amount of the Financing available to Parent pursuant to the Debt Commitment Letter, at Closing other than as the conditions to Closing set forth herein and the conditions expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required AmountCommitments. As of the date of this Agreementhereof, (i) to ▇▇▇▇▇ Parent’s knowledge there is no event that has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of ▇▇▇▇▇ Parent or, to the Knowledge of Parent, any other parties thereto or Sponsor under any term or condition of the Debt Commitment LetterFinancing Commitments, and (ii) assuming the satisfaction or waiver and, as of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Perioddate hereof, Parent does not have any reason to believe Buyer has no knowledge that any of the conditions to the Debt Financing Commitments will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to ▇▇▇▇▇ Parent on at Closing, subject to the Closing Dateperformance by Trican Parent and the Seller Companies of their respective obligations under this Agreement. As of the date hereof, ▇▇▇▇▇ Parent has fully paid (or caused to be paid) paid any and all commitment fees or and other fees that are required by the Financing Commitments or the executed fee letters referred to in the Debt Financing Commitment (the “Debt Financing Fee Letters”), that are due and payable pursuant to the extent required to be paid terms thereof on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters Agreement, and customary engagement letters with respect ▇▇▇▇▇ Parent will pay or cause to be paid any other commitment fees and other fees that are required to be paid by ▇▇▇▇▇ Parent under the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), Fee Letters as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Lettersthey become due.
Appears in 1 contract
Financing. At (a) Section 5.7(a) of Parent Disclosure Letter sets forth true and complete copies of (i) an executed equity commitment letter from the Closing, assuming Guarantors to provide $132,000,000 (without limiting the funding provisions of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation Section 7.9 of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of as such amount may be increased or payable by Parent, Merger Sub decreased so long as such increase or decrease does not cause the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required representation in Section 5.9 to be paid untrue) in connection with, or as a result of, the consummation of the Transactions equity financing (the “Required AmountEquity Financing”). As of the date hereof, ▇▇▇▇▇▇ has delivered ) to the Company Parent and/or Merger Sub (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Equity Commitment Letter”), (ii) and (b) a copy of any fee letters related to the Debt Commitment Letter an executed contribution agreement from each Rollover Investor (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing LettersRollover Contribution Agreements”) (which may be redacted pursuant to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant towhich, and subject to the terms and conditions ofof which, the Rollover Investors have committed to contribute to Parent, the Surviving Corporation or a direct Subsidiary of the Surviving Corporation the amount of shares of Company Capital Stock and membership interests in EFS set forth therein and to consummate the transactions contemplated thereby (the “Rollover Investment”), (iii) the executed Receivables Commitment Letter to purchase the EADV Interests pursuant to the Receivables Purchase Agreements in the Receivables Sale Transaction and (iv) the executed debt commitment letters (the “Debt Commitment Letters” and, together with the Equity Commitment Letter, the lender thereunder has Rollover Contribution Agreements and the Receivables Commitment Letter, the “Financing Commitments”) from the lenders or purchasers party thereto (the “Lenders”) pursuant to which, and subject to the terms and conditions of which, the Lenders have committed to lend provide Parent and/or Merger Sub with loans or other funds in an aggregate amount of $189,947,784 (without limiting the amounts set forth therein for provisions of Section 7.9 of this Agreement, as such amount may be increased or decreased so long as such increase or decrease does not cause the purposes set forth representation in such Debt Commitment Letter Section 5.9 to be untrue) as described therein, the proceeds of which may be used to consummate the Merger and the other transactions contemplated by this Agreement, including the payoff amount and related fees and expenses including the expenses incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement (including the Financing) (the “Debt Financing” and, together with the Equity Financing pursuant to the Equity Commitment Letter, the Rollover Investment pursuant to the Rollover Contribution Agreements and the Receivables Sale Transaction pursuant to the Receivables Commitment Letter, the “Financing”). There are no other agreements, side letters or arrangements relating to the Equity Financing, including any syndication thereof, except as set forth in the Equity Commitment Letter.
(b) As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter Financing Commitments (i) is in full force and effect and constitutes has not been withdrawn or terminated or otherwise amended or modified in any respect, and (ii) in the form so delivered, is a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of and Merger Sub and the other parties thereto, subject to bankruptcy, insolvency, reorganization, moratorium and other applicable Laws relating to or affecting the Bankruptcy creditors’ rights generally (including fraudulent conveyance laws) and Equity Exceptionto general equity principles, including concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law. There are no other Contracts, agreements, side letters, conditions precedent or arrangements relating to or affecting the obligation to make Financing or the Debt Financing available to Parent pursuant to the Debt Commitment Letterterms thereof, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction Financing Commitments and any related fee or engagement letter (true and correct copies of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant which have been furnished to the Financing LettersCompany; provided that any fee letters may be redacted to remove fee amounts, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amountpercentages and basis points). As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto or Merger Sub under any term or condition of the Debt Commitment LetterFinancing Commitments, and (ii) assuming the satisfaction neither Parent nor Merger Sub has knowledge of any facts or waiver circumstances that would reasonably be expected to result in (1) any of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does Financing Commitments not have any reason to believe that any of the conditions to the Debt Financing will not be being satisfied or that (2) the Debt funding contemplated in the Financing or any other funds necessary to pay the Required Amount will Commitments not be being made available to Parent and/or Merger Sub in order to consummate the transactions contemplated by this Agreement on the Closing Date. Parent has and or Merger Sub have fully paid (or caused to be paid) any and all commitment fees or other fees to required by the extent required Financing Commitments to be paid on or prior to before the date of this Agreement in connection with Agreement. The Financing Commitments contain all of the Debt Financing. Except for the Fee Letters and customary engagement letters with respect conditions precedent to the Debt Financing (none of which reduces the amount obligations of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating parties thereunder to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in make the Financing Lettersavailable to Parent on the terms therein.
Appears in 1 contract
Financing. At (a) On the ClosingClosing Date, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter Buyer and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent Borrower will have immediately the financial capability and sufficient funds available funds in an amount as is (through cash on hand, unrestricted cash available to it under existing credit agreements or otherwise) necessary to consummate the Transactions, including the satisfy all of their respective payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs obligations under this Agreement, on the terms and subject to the conditions set forth in this Agreement, including to enable (i) Borrower to contribute the proceeds of the Financing to Buyer and (ii) following such contribution, Buyer to make the Closing Payment, pay all other amounts to be paid or repaid by Buyer under this Agreement (whether payable on or after the Closing), any and pay all of its and its Affiliates’ fees and expenses of or payable by Parent, Merger Sub or associated with the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”)Transactions. As of the date hereof, ▇▇▇▇▇▇ affirms and agrees that it is not a condition to the Closing or to any of its obligations under this Agreement that it obtain financing for or related to any of the Transactions.
(b) As of the Execution Date, (i) Buyer has received and delivered to the Company (a) Seller a true, correct and complete fully executed copy of an executed commitment letter (the debt commitment letter, “Equity Commitment Letter”) dated as of even date herewiththe Execution Date from Buyer Parent committing, including all exhibits, schedules, annexes subject to (and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with only to) the terms hereofand conditions expressly set forth therein, to provide equity financing (the “Equity Financing”) for the amounts set forth therein to Buyer and with respect to which Seller is an express third-party beneficiary and entitled to specifically enforce certain terms thereof and (ii) Borrower has received and delivered to Seller a true, correct, and complete copy of an executed commitment letter (the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Equity Commitment Letter, the “Financing Commitment Letters”) (which may be redacted to remove dated as of the fee amountsExecution Date, economic terms by and between Borrower and the terms of any lender parties thereto (the “flex” provisions that are customarily redacted in transactions of this typeLenders”), none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionalitypursuant to which, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions ofset forth therein, the Lenders have committed to provide debt financing contemplated thereby to Borrower (the “Debt Financing” and together with the Equity Financing, the “Financing”) for the purpose of Borrower contributing the proceeds of such Financing to Buyer to fund the Transactions on the Closing Date, together with any fee letter in connection with the Debt Commitment Letter, the lender thereunder has committed to lend the amounts customarily redacted as set forth therein for (it being agreed that none of the purposes set forth terms of which that would adversely affect the amount (other than original issue discount or up-front fees that do not cause Buyer, upon funding pursuant to the terms thereof and following receipt of such funds from Borrower, to be unable to pay the amounts payable by Buyer at the Closing pursuant to this Agreement and any fees and expenses required in such Debt Commitment Letter (connection with the “Debt Financing”). As ) or availability of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letterhave been so redacted). Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02Article VII, the net proceeds of amounts to be provided pursuant to the Debt Financing Commitment Letters will, when funded pursuant to the terms thereof and following the contribution of such proceeds by Borrower to Buyer, be sufficient in the aggregate and together with any cash or other funds available for Buyer, when required, to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges pay the amounts payable by Buyer at the Closing pursuant to this Agreement and any fees and expenses required in connection with the Financing Letters, including after giving effect to the maximum amount of any “flex” provisionsFinancing.
(c) for the payment Seller is an express third-party beneficiary of the Required AmountEquity Commitment Letter. The Equity Commitment Letter has been duly authorized and executed by ▇▇▇▇▇ and the other party thereto, and constitutes the valid, binding and enforceable obligation of Buyer and the other party thereto. The Debt Commitment Letter has been duly authorized and executed by ▇▇▇▇▇▇▇▇ and, to Buyer’s Knowledge, the other party thereto, and constitutes the valid, binding and enforceable obligation of Borrower and, to Buyer’s Knowledge, the other party thereto. As of the date Execution Date, the Commitment Letters have not been amended or modified and the commitments contained in the Commitment Letters have not been terminated, withdrawn, reduced or rescinded in any respect. There are no conditions precedent or other contingencies related to the funding of this Agreementthe full amount of the Equity Financing, other than as set forth in the Equity Commitment Letter. There are no conditions precedent or other contingencies related to (i) the funding of the full amount of the Debt Financing, other than as set forth in the Debt Commitment Letter and any related fee letter or (ii) the contribution by ▇▇▇▇▇▇▇▇ to Buyer of the full amount of the Debt Financing. As of the Execution Date, no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or default, breach or result in a failure to satisfy a of condition precedent, in each case, on under the part of Parent applicable Commitment Letters by Buyer and/or Borrower or their respective Affiliates (or, to the Knowledge of ParentBuyer, by any other parties thereto under any term or condition of the Debt Commitment Letterparty thereto) and, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date Knowledge of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereofBuyer, there are no side letters facts or other agreementsoccurrences that make any of the assumptions, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a partythe representations and warranties of Buyer and/or Borrower, other than as expressly set forth in the Financing Lettersapplicable Commitment Letters inaccurate in any material respect.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Kinetik Holdings Inc.)
Financing. At (a) Assuming the Closing, assuming the funding accuracy of the Debt Financing representations and warranties set forth in accordance with the Debt Commitment Letter and after Article II (without giving effect to any “flex” provision materiality, Company Material Adverse Effect or knowledge qualifiers) to the extent that the accuracy of such representations and warranties (as so unqualified) is necessary for the representations and warranties in this Section 3.11(a) to be true and correct, the Debt Commitment Letter amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with Company cash and cash equivalents, are sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by this Agreement, the related fee letters Financing Letters or any Company Indebtedness; (including with respect to ii) pay any and all fees and original issue discount), Parent will have immediately available funds in an amount as is necessary expenses required to consummate the Transactions, including the payment be paid by Parent, Merger Sub and the Surviving Corporation in connection with the Merger and the Financing; and (iii) satisfy all of the aggregate amount other payment obligations of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or and the Surviving Corporation contemplated hereunder.
(b) Parent and any other amountsMerger Sub have delivered to the Company a true, including Indebtedness complete and accurate copy of (i) the executed commitment letter, dated as of the Company date hereof, among Parent, Merger Sub and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions Guarantor (the “Required AmountEquity Financing Letter”), pursuant to which the Guarantor has committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, between Intermediate Holdco and ▇▇▇▇▇ Fargo Capital Finance, LLC (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” and, together with the Equity Financing, the “Financing”).
(c) The Financing Letters have not been amended or modified prior to the date hereof and, as of the date hereof, none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. As of the date hereof, ▇▇▇▇▇▇ has the Financing Letters, in the form so delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of on the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) are in full force and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”)effect. As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement Financing Letters are (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the i) legal, valid and binding obligation obligations of Parent and Merger Sub, as applicable, and, to the Knowledge knowledge of Parent, each of the other parties thereto and (ii) enforceable in accordance with their respective terms against Parent and Merger Sub, as applicable, and, to the knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent andeach case except that such enforceability (x) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to the Knowledge of Parent, each of the other parties thereto, creditors’ rights generally and (y) is subject to the Bankruptcy rules governing the availability of specific performance, injunctive relief or other equitable remedies and Equity Exceptiongeneral principles of equity, regardless of whether considered in a proceeding in equity or at law. There are no conditions precedent or other contingencies related to the obligation to make funding of the Debt Financing available to Parent pursuant to full amount of the Debt Commitment LetterFinancing, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, assuming the accuracy of the representations and warranties set forth in Article II, (iI) no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent oror Merger Sub, as applicable, or to the Knowledge knowledge of Parent, any other parties thereto thereto, under any term or condition of the Debt Commitment Letter, Financing Letters and (iiII) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, neither Parent does not have nor Merger Sub has any reason to believe that any of the conditions to the Debt Financing contemplated in the Financing Letters will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be made available to Parent on and Merger Sub at or prior to the Closing DateEffective Time. Parent has and Merger Sub have fully paid (paid, or caused to be fully paid) , any and all commitment fees or other fees to the extent required to be paid which are due and payable on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect hereof pursuant to the Debt Financing (none terms of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Letters.
Appears in 1 contract
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereofAgreement Date, ▇▇▇▇▇▇ Parent has delivered to the Company true, complete and correct copies of (ai) a correct and complete fully the executed copy of the debt commitment letter, dated as of even date herewiththe Agreement Date, from the financial institutions and other entities party thereto (including the parties to any joinder agreements or amendments joining such financial institutions or other entities to the Debt Commitment Letter and any lenders or investors of the debt financing contemplated by the Debt Commitment Letter, collectively, the “Debt Financing Sources”) (including all exhibits, schedulesschedules and annexes thereto, annexes and amendments to such the executed fee letter associated therewith redacted in effect a manner as of the date of this Agreement (as may be amended or modified in accordance with the terms hereofdescribed below, collectively, the “Debt Commitment Letter”), pursuant to which the Debt Financing Sources have committed, subject to the terms and conditions set forth therein, to provide the aggregate amounts set forth therein (the debt financing contemplated by the Debt Commitment Letter, the “Debt Financing”) and (bii) a copy the executed equity commitment letter, dated as of any fee letters related to the Debt Commitment Letter Agreement Date, among Parent and the other parties thereto (including all exhibits, schedules and annexes thereto, the “Fee LettersEquity Commitment Letter” and, together with the Debt Commitment Letter, the “Financing Commitment Letters”) ), pursuant to which the Guarantors have committed, subject to the terms and conditions set forth therein, to invest cash in the aggregate amount set forth therein (which may be redacted the “Equity Financing” and, together with the Debt Table of Contents Financing, the “Financing”). As of the Agreement Date, Parent has also delivered to remove the Company a true, complete and correct copy of the executed fee letter associated with the Debt Commitment Letter with the fee amounts, “market flex” provisions, “securities demand” provisions and other economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this typea customary manner, none of which redactions covers terms that would (i) reduce the amount of the Debt Financing below the Required Amount amount required to satisfy the Financing Uses (after taking into account any available Equity Financing and available cash of the Company and its Subsidiaries), (ii) impose any new condition or otherwise adversely affect amend, modify or expand any conditions precedent to the conditionality, enforceability, termination or availability funding of the Debt Financing). Pursuant to, and subject Financing in an amount required to satisfy the terms and conditions of, Financing Uses on the Closing Date or (iii) materially delay or prevent the Closing or make the funding of the Debt Commitment Letter, Financing in the lender thereunder has committed amount required to lend satisfy the amounts set forth therein for Financing Uses (after taking into account any available Equity Financing and available cash of the purposes set forth in such Debt Commitment Letter (the “Debt Financing”)Company and its Subsidiaries) less likely to occur. As of the date hereofAgreement Date, neither (i) none of the Debt Commitment Letter nor any Fee Letter has Letters have been amended, restated supplemented or otherwise modified or waived prior to the execution and delivery of this Agreementmodified, (ii) no such amendment, restatement supplement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawnby Parent or, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery knowledge of this Agreement Parent, by the other parties thereto (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities who had not executed the Debt Commitment Letter as of the Agreement Date) and (iii) the respective commitments contained in a manner the Commitment Letters have not been withdrawn, terminated or rescinded and, to the knowledge of Parent, no such withdrawal, termination or rescission is contemplated. As of the Agreement Date, except for customary engagement letters and fee credit letters with respect to the debt financing contemplated by the Debt Commitment LetterLetter (none of which (i) reduces the amount of the Debt Financing below the amount required to satisfy the Financing Uses (after taking into account any available Equity Financing and available cash of the Company and its Subsidiaries), (ii) imposes any new condition or otherwise adversely amends, modifies or expands any conditions precedent to the funding of the Debt Financing in an amount required to satisfy the Financing Uses on the Closing Date, (iii) would materially delay or prevent the Closing or (iv) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Debt Commitment Letter or the Equity Commitment Letter or the Definitive Financing Agreements), there are no side letters or Contracts to which Parent or Merger Sub is a party related to the funding or investing, as applicable, of the full amount of the Financing other than as expressly set forth in the Commitment Letters delivered to the Company on or prior to the Agreement Date. As of the date of this AgreementAgreement Date, Parent has fully paid any and all commitment fees or other fees in connection with the Debt Commitment Letter is that are due and payable on or prior to the Agreement Date pursuant to the terms of the Debt Commitment Letter and Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid pursuant to the terms of the Debt Commitment Letter as and when they become due and payable prior to the Closing Date. As of the Agreement Date, the Commitment Letters are in full force and effect and constitutes are the legal, valid valid, binding and binding obligation enforceable obligations of Parent and Merger Sub, as the case may be, and, to the Knowledge knowledge of Parent, each of the other parties thereto, enforceable subject, in accordance with its terms against Parent andeach case, to the Knowledge effect of Parent, each any Enforceability Exceptions As of the other parties theretoAgreement Date, subject to the Bankruptcy and Equity Exception. There there are no conditions precedent related to the obligation funding or investing, as applicable, of the full amount of the Financing required to make satisfy the Debt Financing available to Parent pursuant to the Debt Commitment LetterUses, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date Agreement Date, to the knowledge of this AgreementParent, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of Parent or result in Merger Sub under any of the Commitment Letters, (ii) constitute a failure to satisfy a condition precedent, in each case, on the part of Parent oror Merger Sub under the Commitment Letters, or (iii) assuming the satisfaction of the conditions to the Knowledge of Parent, any other parties thereto under any term funding or condition investing of the Debt Commitment LetterFinancing on the Closing Date, and (ii) otherwise result in any portion of the Financing required to satisfy the Financing Uses being unavailable on the Closing Date. As of the Agreement Date, assuming the satisfaction or waiver of the conditions set forth in Section 6.01 to Parent’s and Section 6.02 and taking into account Merger Sub’s obligations to consummate the Marketing PeriodMerger, Parent does not and Merger Sub have any no reason to believe that any of the conditions to the Debt Financing contemplated by the Commitment Letters applicable to Parent or Merger Sub, as applicable, will not be satisfied or that the Debt full amount of the Financing or any other funds necessary required to pay satisfy the Required Amount Financing Uses will not be made available to Parent on the Closing Date. Assuming the Financing is funded or invested in accordance with the Commitment Letters, Parent has fully paid and Merger Sub will have on the Closing Date funds sufficient to (or caused to be paidi) pay the aggregate Per Share Merger Consideration, (ii) pay the Payoff Amount and (iii) satisfy all commitment fees or of the other fees to the extent payment obligations required to be paid on or prior to the date of this Agreement at Closing by Parent and Merger Sub hereunder in connection with the Debt FinancingTransactions (clauses (i) and (ii), the “Financing Uses”). Except Each of Parent and Merger Sub affirms that it is not a condition to the Closing that Parent or Merger Sub obtain financing for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersTransactions.
Appears in 1 contract
Sources: Merger Agreement (Shutterfly Inc)
Financing. At Until the Closing, assuming the funding Discharge of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect Senior Priority Obligations occurs, if any Obligor shall be subject to any Insolvency Proceeding and each Senior Creditor consents to the use of cash collateral (as such term is defined in Section 363(a) of the Bankruptcy Code; herein, “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discountCash Collateral”), Parent will have immediately available funds in an amount as is necessary on which any Senior Creditor has a Lien or permits any Obligor to consummate the Transactions, including the payment obtain financing provided by Parent, Merger Sub and the Surviving Corporation any one or more Senior Claimholders or any other Person under Section 364 of the aggregate amount of Bankruptcy Code or any similar Bankruptcy Law (such financing, together with any Cash Collateral use, collectively a “DIP Financing”), then each Subordinated Claimholder agrees that it will consent to such Cash Collateral use and such DIP Financing, and no Subordinated Claimholder will raise any objection to such Cash Collateral use or such DIP Financing and to the Merger Consideration, extent the Liens securing the Senior Priority Obligations (other amounts payable pursuant to Article II (including all amounts payable than any Senior Priority Obligations in respect of Company Stock Optionssuch DIP Financing) are discharged, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of subordinated to or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result ofpari passu with such DIP Financing, the consummation of Subordinated Claimholders will subordinate their Liens in the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered Collateral to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to Liens securing such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt DIP Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, so long as (1) the aggregate principal amount of any such DIP Financing, plus the aggregate outstanding principal amount of the Senior Priority Obligations does not exceed the Senior Debt Cap, (2) the interest rate, fees and other terms of such DIP Financing are commercially reasonable under the circumstances, (3) subject to the last sentence of this Section 5(b) and subject to the agreement to subordinate the Liens of the Subordinated Claimholders set forth above in this Section 5(b), Subordinated Agent retains a Lien on the part Collateral (including Proceeds thereof arising after the commencement of Parent or, such Insolvency Proceeding) with the same priority as existed prior to the Knowledge commencement of Parentsuch Insolvency Proceeding, (4) if, in connection with such DIP Financing, the Subordinated Claimholders request any other parties thereto under form of adequate protection permitted by Section 5(e)(2), Senior Agent and the Senior Claimholders do not object to the granting of such relief, (5) such DIP Financing does not compel any term Obligor to seek confirmation of a specific plan of reorganization for which all or condition substantially all of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions material terms are set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Perioddocumentation relating to such DIP Financing, Parent (6) such DIP Financing does not have any reason to believe that any expressly require the sale, liquidation or disposition of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or Collateral prior to a default under the date of this Agreement in connection with DIP Financing unless the Debt Financing. Except for the Fee Letters and customary engagement letters Subordinated Claimholder is permitted to raise objections solely with respect to the Debt foregoing, and (7) such DIP Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating is otherwise subject to the Debt Commitment Letter to which Parent or any terms of its Affiliates is a party, other than as expressly set forth in the Financing Lettersthis Agreement.
Appears in 1 contract
Sources: Intercreditor and Subordination Agreement (Global Telecom & Technology, Inc.)
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a true, correct and complete fully executed copy of the debt commitment lettercopies, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement Agreement, of (as may be amended or modified in accordance with the terms hereof, the “Debt i) executed Equity Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount Letters from each of the Debt Financing below Sponsors, pursuant to which the Required Amount or adversely affect the conditionalitySponsors have committed, enforceability, termination or availability of the Debt Financing). Pursuant to, on and subject to the terms and conditions ofset forth therein, the Debt Commitment Letter, the lender thereunder has committed to lend provide equity financing in the amounts set forth therein for the purposes of financing a portion of the Required Uses (the “Equity Financing”), (ii) an executed debt commitment letter and a Redacted Fee Letter from Credit Suisse AG, Cayman Islands Branch, Credit Suisse Loan Funding LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Citigroup Global Markets Inc., Deutsche Bank AG New York Branch, Deutsche Bank AG Cayman Islands Branch, Deutsche Bank Securities Inc., SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., SunTrust Bank, The Toronto-Dominion Bank, New York Branch and TD Securities (USA) LLC (together, the “Debt Commitment Letter” and, together with the Equity Commitment Letters, collectively referred to as the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions set forth therein, to provide debt financing in such Debt Commitment Letter the amounts set forth therein for the purposes of financing a portion of the Required Uses (being collectively referred to as the “Debt Financing”, and together with the Equity Financing, collectively referred to as the “Financing”). As None of the Financing Letters has been amended or modified prior to the date of this Agreement and, as of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement such amendment or other modification is contemplated and the respective commitments contained in (other than amendments or modifications to the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than solely to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by that have not executed the Debt Commitment Letter)Letter as of the date hereof) and, as of the date of this Agreement, to the Knowledge of Parent, the respective commitments contained in the Financing Letters have not been withdrawn or rescinded in any respect. Except for engagement letters, fee credit letters and non-disclosure agreements with respect to the Financing, as of the date of this Agreement, there are no side letters or agreements to which Parent or Merger Sub or any of their Affiliates is a party related to the funding or investing, as applicable, of the Financing, or which include conditions precedent to the obligations of the parties thereunder, other than as expressly set forth in the Financing Letters delivered to the Company pursuant to this Section 3.7. Parent has fully paid or caused to be fully paid any and all commitment fees or other fees in connection with the Financing Letters that are payable on or prior to the date of this Agreement, and as of the date of this Agreement, the Financing Letters are in full force and effect and are the legal, valid, binding and enforceable obligations of Parent and Merger Sub, as the case may be, and, to the Knowledge of Parent or Merger Sub, each of the other parties thereto, in each case, subject to the Remedies Exception. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Letters. As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or Merger Sub or, to the Knowledge of ParentParent or Merger Sub, any other parties party thereto under any term or condition of the Debt Commitment LetterFinancing Letters. As of the date of this Agreement, and (ii) assuming the satisfaction or waiver that each of the conditions to Closing set forth in Section 6.01 Sections 5.1 and Section 6.02 and taking into account the Marketing Period5.2 of this Agreement have been satisfied, Parent does not have any has no reason to believe that any of the conditions to the Debt Financing contemplated by the Financing Letters applicable to it will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Assuming the Financing is funded and/or invested in accordance with the Financing Letters, Parent has fully paid and Merger Sub will have on the Closing Date, in the aggregate and together with the available cash and cash equivalents of the Company, funds sufficient to (i) pay the aggregate Merger Consideration and the aggregate Company RSU Consideration, (ii) finance the repayment or caused to be paidrefinancing of Indebtedness contemplated by this Agreement or either Financing Letter, (iii) pay any and all commitment fees or other fees to the extent and expenses required to be paid on or prior to by Parent, Merger Sub and the date of this Agreement Surviving Corporation in connection with the Debt Merger and the Financing. Except for the Fee Letters , and customary engagement letters with respect to the Debt Financing (none of which reduces the amount iv) satisfy all of the Debt Financing below other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder (collectively, the “Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt FinancingUses”), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Letters.
Appears in 1 contract
Sources: Merger Agreement (Zayo Group LLC)
Financing. At Subject to the other provisions of this Section 4.4, Purchaser will have at the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available sufficient funds in an aggregate amount as is necessary to pay the Purchase Price in full and to consummate all of the other Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger ConsiderationPurchase Price in full and all fees, expenses of, and other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid by, Purchaser in connection with, or as a result of, the consummation of with the Transactions (the “Required AmountSpecified Uses”) and does not know of any circumstance or condition that could reasonably be expected to prevent or substantially delay the availability of such funds or otherwise impair such capability at the Closing and such other dates that such obligations and transactions are required to be satisfied pursuant to the terms hereof. Purchaser affirms that it is not a condition to Closing or to any of its obligations under this Agreement that Purchaser obtains financing for the Transactions.
(a) Purchaser is a wholly-owned subsidiary of Guarantor, and is managed and controlled by Guarantor. Guarantor is a borrower under a Credit Agreement dated as of November 30, 2021 by and among Guarantor, R+L Paramount Transportation Systems, Inc. (“R+L Paramount”), and together with Guarantor, the borrowers under that certain Credit Agreement) the financial institutions party thereto as lenders, and JPMorgan Chase Bank, N.A., as administrative agent (“Administrative Agent”), which was amended on November 8, 2023 (such Credit Agreement, as amended through such date, the “Credit Agreement”). As The Credit Agreement includes revolving loans with an available amount of $384,150,000 as of November 9, 2023 (the date hereof, ▇▇▇▇▇▇ has delivered “Revolving Loans”). The Credit Agreement also includes specific provisions relating to the Company Financing (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment LetterAgreement”) and to reflect the commitment of the “Delayed Draw Term Loan Lenders” thereunder (bcollectively referred to herein as the “Lenders”) a copy to provide up to $325,000,000 of any fee letters related “Delayed Draw Term Loans” comprising “Yellow Acquisition Borrowings” (each as defined therein) subject solely to the Debt Commitment Letter conditions to Yellow Acquisition Borrowings set forth therein (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted such commitments to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to provide Delayed Draw Term Loans on the terms and conditions oftherein, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As Purchaser, acting through its parent company, Guarantor, is, and as of the date hereofClosing will be, neither entitled under the Credit Agreement to make draws on the Revolving Loans and Yellow Acquisition Borrowings in an aggregate amount sufficient to make the Closing Date Payment. There have been no further amendments or modifications to the terms of the Financing (unless permitted by Section 6.6 or otherwise agreed to by Yellow). On November 9, 2023, the total amount available to Guarantor under the Credit Agreement and Debt Commitment Letter nor any Fee Letter has been amendedAgreement was $709,150,000, restated or otherwise modified or waived and the total amount available to Guarantor under the Credit Agreement and Debt Commitment Agreement will, from the date hereof until immediately prior to the execution and delivery Closing, remain an amount sufficient for the payment of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Closing Date Payment.
(b) The Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As contains all of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation obligations of the parties thereunder to make the Debt Financing available to Parent pursuant Purchaser on the terms therein. There are, and as of the Bidder Approval Date there shall be, no side letters or other agreements, Contracts or arrangements related to the Debt Commitment Letterfunding or investing, as applicable, of any of the Financing, other than as expressly set forth in the Debt Commitment LetterAgreement, and there are, and as of the Bidder Approval Date there shall be, no contingencies that would permit the Lenders to reduce the total amount of the Financing below the amount described in Section 4.4(a). Assuming Purchaser has taken all actions required to cause the Debt Commitment Agreement to remain effective.
(c) The Financing, when funded in accordance with the Debt Commitment Agreement, shall, together with the Revolving Loans and Purchaser’s cash on hand, provide Purchaser with acquisition financing at the Closing sufficient for the payment of the Closing Date Payment, the satisfaction of all of Purchaser’s obligations under this Agreement and the Transaction Agreements and the payment of all costs and fees to be borne by Purchaser and its Affiliates.
(d) As of the date hereof and as of the announcement by the Debtors that Purchaser is the Successful Bidder at the Auction (the “Bidder Approval Date”), and assuming the satisfaction of the conditions set forth in Section 6.01 7.1 and 6.02Section 7.2, the net proceeds of the Debt Financing willno event, in the aggregate and together with any cash fact or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event circumstance has occurred whichthat, with or without notice, lapse of time time, or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, precedent on the part of Parent orPurchaser under the terms and conditions of the Debt Commitment Agreement. As of the Bidder Approval Date, Purchaser shall have paid in full any and all commitment fees or other fees required to be paid pursuant to the Knowledge terms of Parent, any other parties thereto under the Debt Commitment Agreement on or before the Bidder Approval Date. Purchaser has no reason to believe that it will be unable to satisfy on a timely basis any term or condition of the Financing to be satisfied by it contained in the Debt Commitment Letter, and (ii) assuming Agreement or that the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be made available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid Purchaser on or prior to the date Closing.
(e) Notwithstanding this Section 4.4 or any other provision of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect Agreement, Purchaser affirms that it is not a condition to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount Closing or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in obligations under this Agreement (including consummating the Financing LettersTransactions) that Purchaser obtain financing for or related to Transactions (including receipt of all or any portion of the proceeds of the Financing).
Appears in 1 contract
Sources: Asset Purchase Agreement
Financing. At (a) Assuming the Closingaccuracy of the representations and warranties set forth in Sections 4.3, assuming 4.7(a) and 4.17, the performance by the Company of its obligations under this Agreement and the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect Financing Letters, the amount of funds contemplated to be provided pursuant to the Financing Letters together with any “flex” provision available Company cash shall on the Closing Date be sufficient (i) to acquire all of the outstanding Shares in accordance with the Debt Commitment Letter or terms of the related fee letters (including Merger, to pay all cash amounts to be paid with respect to the Company’s outstanding equity compensation awards pursuant to Section 3.3 and to pay all fees and original issue discount), expenses payable by Parent will have immediately available funds in an amount as is necessary and Merger Sub under this Agreement and the Financing Letters and (ii) to consummate the Transactions, including the payment by Parent, Merger Sub transactions described in Section 6.18 and the Surviving Corporation refinancing of the aggregate amount Amended and Restated Revolving Credit Agreement dated as of the Merger ConsiderationApril 29, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of2010 among TPC Group LLC, the consummation of other borrowers named therein, Deutsche Bank Trust Company Americas, as administrative agent, and the Transactions other lenders named therein, as amended (the “Required AmountExisting Credit Facility”). As of the date hereof, ▇▇▇▇▇▇ has .
(b) Parent and Merger Sub have delivered to the Company (a) a correct complete and complete fully executed copy accurate copies, as of the debt date of this Agreement, of (i) an executed commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the “Equity Financing Letter”), pursuant to which the investors party thereto have committed, upon the terms hereofand subject to the conditions thereof, to invest the cash amounts set forth therein (the “Equity Financing”), and (ii) an executed commitment letter, dated as of the date of this Agreement, from Bank of America, N.A., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Jefferies Finance LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. (the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed to provide, upon the terms and subject to the conditions thereof, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing” and, together with the Equity Financing, the “Financing”). Parent and Merger Sub also have delivered to the Company a true, complete and correct copy of any fee letter (the “Fee Letter”) and any engagement letter (which the “Engagement Letter”) in connection with the Debt Commitment Letter (it being understood that any such Fee Letter or Engagement Letter provided to the Company may be redacted to remove omit the numerical fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financingamounts provided therein). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter .
(the “Debt Financing”). c) As of the date hereof, neither of the Financing Letters nor the Fee Letter or Engagement Letter referenced in the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution modified, and delivery of this Agreement, no such amendment, restatement or other modification is contemplated presently contemplated, and the respective commitments contained set forth in the Debt Commitment Letter Financing Letters have not been withdrawn, rescinded, amended, restated modified or otherwise modified rescinded in any respect prior respect. The Financing Letters, in the form so delivered to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of Company on the date of this Agreementhereof, the Debt Commitment Letter is are in full force and effect and each constitutes the a legal, valid and binding obligation of Parent andor Merger Sub and (in the case of the Debt Commitment Letter, to the Knowledge knowledge of Parent, each the officers of Parent or Merger Sub) the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, case subject to the Bankruptcy applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to creditors’ rights, general principles of equity and Equity Exceptionany implied covenant of good faith and fair dealing. There are no conditions precedent or other contingencies related to the obligation to make funding of the Debt Financing available to Parent pursuant to full amount of the Debt Commitment LetterFinancing, other than as expressly set forth in the Debt Commitment LetterFinancing Letters. Assuming the satisfaction accuracy of the conditions Company’s representations and warranties set forth in Section 6.01 and 6.02herein, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As as of the date of this Agreement, (i) no event has occurred whichthat, with or without notice, lapse of time or both, constitutes or would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent orParent, Merger Sub or the investors party to the Knowledge Equity Financing Letter, as applicable, or (to the knowledge of the officers of Parent, ) any other parties party thereto under any term or condition of the Debt Commitment LetterFinancing Letters, and (ii) assuming except that no representation or warranty is made to the satisfaction extent that any term or waiver condition requires any action by, or otherwise relates to, the Company or any of its Subsidiaries. Assuming the accuracy of the conditions set forth in Section 6.01 Company’s representations and Section 6.02 and taking into account warranties contained herein, as of the Marketing Perioddate of this Agreement, neither Parent does not have nor Merger Sub has any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent or Merger Sub on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the any Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount Letter or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing)any Engagement Letter, as of the date hereof, hereof there are no side letters or other written or oral agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or Merger Sub or any of its Affiliates Affiliate thereof is a partyparty related to the funding or investing, as applicable, of the Financing other than as expressly set forth in the Financing Letters delivered to the Company prior to the date hereof. Parent or Merger Sub has fully paid or caused to be paid any and all commitment and other fees, costs and expenses that have been incurred and are due and payable on or prior to the date hereof in connection with the Financing Letters.
Appears in 1 contract
Sources: Merger Agreement (TPC Group Inc.)
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect Parent has delivered to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company true and its Subsidiariescomplete copies of (i) the executed commitment letters, required to be paid in connection with, or dated as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered among Parent, Deutsche Bank Securities Inc., Deutsche Bank AG New York Branch, Wachovia Capital Markets, LLC, Wachovia Bank, National Association and Wachovia Investment Holdings, LLC (collectively, the “Debt Financing Commitments”), pursuant to which the lenders party thereto committed, subject to the Company (a) a correct and complete fully executed copy of terms thereof, to lend the debt amounts set forth therein (the “Debt Financing”), and (ii) the executed equity commitment letterletters, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) from affiliates of Fortress Investment Group LLC and Centerbridge Partners, L.P. (b) a copy of any fee letters related to the Debt Commitment Letter collectively, (the “Fee LettersEquity Financing Commitments” and, together with the Debt Commitment LetterFinancing Commitments, the “Financing LettersCommitments”) (), pursuant to which may be redacted to remove the fee amountssuch parties have committed, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions ofthereof, to invest the Debt Commitment Letter, the lender thereunder has committed to lend the cash amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Equity Financing” and, together with the Debt Financing, the “Financing”). As The Financing Commitments are in full force and effect, are legal, valid and binding obligations of Parent and, to the knowledge of Parent, the other parties thereto, and the Company is a third party beneficiary of the date hereofEquity Financing Commitments. Under the Equity Financing Commitments, neither each of the Debt Commitment Letter nor any Fee Letter parties thereto has guaranteed to the Company the payment of certain obligations specified therein (the “Limited Guarantee Provisions”). The Limited Guarantee Provisions are in full force and effect and are legal, valid and binding obligations of the parties thereto and are enforceable in accordance with their terms by the parties thereto and by the Company as a third party beneficiary thereof. None of the Financing Commitments has been amendedor will be amended or modified, restated or otherwise modified or waived prior to the execution and delivery of this Agreementexcept as consistent with Section 7.9(c), no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter Financing Commitments have not been withdrawn, rescinded, amended, restated withdrawn or otherwise modified rescinded in any respect prior to as of the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter)date hereof. As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, or Merger Sub under any Financing Commitment and subject to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 Sections 8.1 and Section 6.02 and taking into account the Marketing Period8.2 hereof, neither Parent does not have nor Merger Sub has any reason to believe that it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it in any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid Commitments on or prior to the date Closing Date. The funds contemplated to be provided by the Financing Commitments would be sufficient to enable Parent to make or cause to be made payments of this Agreement the Merger Consideration as provided herein (including for the Company Options as provided herein), all other necessary payments by it, Merger Sub or the Surviving Corporation in connection with the Debt FinancingMerger (including the repurchase or repayment of outstanding indebtedness of the Surviving Corporation) and all of the related fees and expenses. Except for the Fee Letters and customary engagement letters with respect There are no conditions precedent or other contingencies to the Debt Financing (none of which reduces the amount funding of the Debt Financing below other than as set forth in the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there Financing Commitments. There are no side letters or other agreements, contracts or arrangements of any kind relating related to the funding or investing, as applicable, of the full amount of the Debt Commitment Letter to which Parent or any of its Affiliates is a party, Financing other than as expressly set forth in the Debt Financing LettersCommitments and delivered to the Company prior to the date hereof. As of the date hereof, Parent or Merger Sub has fully paid, or caused to be fully paid, any and all commitment fees which are due and payable with respect to the Debt Financing Commitments.
Appears in 1 contract
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), a) Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct true and complete fully executed copy of the debt commitment letter(i) an executed Sponsor Commitment Agreement, dated as of even the date herewithhereof (the “Sponsor Commitment Agreement”), including all exhibitsamong Parent, schedulesSub and the Guarantors, annexes pursuant to which the Guarantors have agreed, according to the terms and amendments subject to such the conditions therein, to fund the amounts set forth therein for the purposes set forth therein (the “Sponsor Financing”) and (ii) an executed commitment letter in effect (together with any term sheet relating thereto), dated as of the date of this Agreement hereof (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Sponsor Commitment LetterAgreement, the “Financing LettersCommitments”) from Cerberus Business Finance, LLC, pursuant to which the lender party thereto (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionalitySources”) has committed, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject solely to the terms and conditions ofthereof, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter therein (the “Debt Financing” and, together with the Sponsor Financing, the “Financing”). As Parent has also delivered to the Company true and complete copies of the date hereofany fee letter (any such fee letter, neither a “Fee Letter”) and term sheet relating to the Debt Commitment Letter nor and any Fee Letter has been amended, restated or otherwise modified or waived prior engagement letters relating to the execution Debt Financing. The Company is an express third-party beneficiary with respect to, and delivery of this is entitled to specifically enforce, the Sponsor Commitment Agreement.
(b) Parent or the Guarantors have and, no amendment, restatement or other modification is contemplated at the Closing and the respective commitments contained in Offer Closing Parent will have, sufficient available funds to pay when due the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in Parent Payment and any respect prior other cash amounts Table of Contents payable pursuant to the execution and delivery of this Agreement or in connection with the Transactions to be paid by Merger Sub or Parent (in each casecollectively, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter“Financing Uses”). As .
(c) All of the date of this Agreement, the Debt Commitment Letter is Financing Commitments are in full force and effect and constitutes have not been withdrawn or terminated or otherwise amended, supplemented or modified in any respect. Each of the Financing Commitments, in the form delivered to the Company, is a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable against such parties in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties theretoterms, subject to the Bankruptcy and Equity Exception. There are no conditions precedent side letters or other Contracts or arrangements (except for any Fee Letters, engagement letters with respect to the obligation to make the Debt Financing available to Parent pursuant to and any agreements entered into after the date hereof that are expressly contemplated by the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant ) relating to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required AmountCommitments. As of the date of this Agreement, (i) no No event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to could constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, Sub or either Guarantor under any other parties thereto term of, or a failure of any condition under, any of the Financing Commitments or otherwise result in any portion of the Financing contemplated thereby to be unavailable at the Closing or the Offer Closing. Assuming the accuracy of the representations and warranties set forth in Section 3.02(a) and Section 3.02(b), the performance in all material respects by the Company of its obligations under this Agreement and satisfaction of the conditions set forth in Article VI and Annex II, neither Parent nor Sub has reason to believe that it, either of the Guarantors or any Debt Financing Source would be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason Financing Commitments required to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Dateby such person. Parent has or Sub have fully paid (or caused to be paid) any and all commitment fees or other fees to required by the extent required Financing Commitments to be paid on or prior to before the date of this Agreement in connection with the Debt FinancingAgreement. Except for the Fee Letters and customary engagement letters with respect There are no conditions precedent or other contingencies related to the Debt Financing (none funding of which reduces the full amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersCommitments.
(d) Neither Parent nor Sub has, directly or indirectly, entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that prohibits such provider from providing or seeking to provide services, including debt or equity financing, to any third person in connection with a transaction relating to the Company or the Company Subsidiaries (including in connection with the making of any Competing Proposal) in connection with the Transactions.
Appears in 1 contract
Sources: Merger Agreement (Tellabs Inc)
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct Parent or Guarantor and complete fully executed copy of the debt certain financing institutions have entered into one or more binding commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement letters (as may be amended or modified in accordance with the terms hereofcollectively, the “Debt Commitment Letter”) entitling Parent or Guarantor to borrow funds in an aggregate amount which, together with all other sources of funding available to Guarantor and after netting out applicable fees, expenses, original issue discount and similar premiums and charges and after giving effect to the maximum amount of “flex” (bincluding any original issue discount flex) a copy of any fee letters related to provided for under the Debt Commitment Letter and Fee Letter, Parent and their respective Subsidiaries (and assuming the “Fee Letters” andaccuracy of the Company’s representations and warranties set forth in Section 3.2(a), together Section 3.2(b), the first sentence of Section 3.2(c) (only to the extent relating to the capital stock or other equity interests of the Company) and Section 3.2(d), such that the condition set forth in Section 7.2(a) is satisfied or waived) will be sufficient to satisfy (i) the payment of all amounts payable by Parent and Merger Sub in accordance with this Agreement, including pursuant to Article II, in connection with or as a result of this Agreement, the Merger and the other Transactions and all related costs, fees and expenses of Parent, the Company and their respective Subsidiaries in connection therewith (including under Section 2.4), (ii) any repayment or refinancing of any existing indebtedness of the Company or the Company Subsidiaries (for the avoidance of doubt, other than the Company Notes) contemplated by, or required in connection with the Transactions described in, this Agreement or the Debt Commitment Letter, and (iii) all amounts payable pursuant to Section 6.13 (collectively, (i) through (iii), the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt FinancingAmounts”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent The debt financing committed pursuant to the Debt Commitment Letter, other than as amended or replaced from time to time in accordance with this Agreement, is collectively referred to in this Agreement as the “Debt Financing”.
(b) Parent or Guarantor has delivered (or caused to be delivered) to the Company a true, complete and correct copy of the Debt Commitment Letter and any fee letters related thereto (the “Fee Letter,” subject, in the case of such fee letters, to redaction solely of provisions related to fees, pricing and economic “flex” terms). Parent expressly acknowledges and agrees that the obligations of Parent under this Agreement are not conditioned in any manner upon Parent obtaining any financing (including term loans, bridge financing and bonds).
(c) Except as expressly set forth in the Debt Commitment Letter and Fee Letter. Assuming , there are no conditions precedent to the satisfaction obligations of the Financing Parties to provide the Debt Financing or any contingencies that would permit the Financing Parties to reduce the total amount of the Debt Financing, impose any additional conditions set forth in Section 6.01 and 6.02, precedent to the net proceeds availability of the Debt Financing willor that would reasonably be expected to affect the timing of the availability of the Debt Financing, in the aggregate and together with including any cash condition or other funds available contingency relating to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable the amount or availability of the Debt Financing pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisionsprovision. Other than the Debt Commitment Letter and the Fee Letter, there are no side letters, understandings or other agreements, contracts or arrangements of any kind (written or oral) for to which Parent or Guarantor is a party, or of which Parent has knowledge, relating to the payment funding of the Required Amountfull amount of the Debt Financing, in each case, that would reasonably be expected affect the availability of the Debt Financing. As of the date hereof, assuming the satisfaction or waiver of this Agreementthe conditions in Article VII, (i) no neither Parent nor Guarantor is aware of any event has occurred or circumstance which, with or without notice, lapse of time or both, would or would reasonably be expected to (i) constitute a default or breach or result in a default under, breach or failure to satisfy a condition precedent, in each case, precedent on the part of Parent or Guarantor, or, to the Knowledge knowledge of ParentParent or Guarantor, or on the part of any other parties thereto party under the Debt Commitment Letters or (ii) otherwise result in any term or condition portion of the Debt Commitment LetterFinancing to be unavailable on a timely basis, and (ii) assuming in any event, not later than the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing DateClosing. Parent or Guarantor has fully paid (or caused to be paid) in full any and all commitment fees or other applicable fees to the extent required to be paid pursuant to the terms of the Debt Commitment Letter on or prior to before the date of this Agreement and will pay (or cause to be paid) in connection with full any applicable amounts due on or before the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersEffective Time.
Appears in 1 contract
Financing. At Buyer affirms that it is not a condition to the Closing or to any of its other obligations under this Agreement that Buyer obtains financing for, or related to, any of the transactions contemplated hereby. Buyer has furnished the Company with a true, accurate and complete copy of (a) the executed preferred equity commitment letter, dated as of the date hereof (such commitment letter and related term sheets, including all exhibits, schedules and annexes thereto, collectively, the “Equity Commitment Letter”) from the purchasers named therein (the “Equity Providers”), to provide, subject to the terms and conditions set forth therein, funding in exchange for preferred equity in the aggregate amount set forth therein for the purpose of funding the transactions contemplated by this Agreement (the “Equity Financing”) (provided, that provisions in the Equity Commitment Letter related solely to fees and economic terms agreed to by the parties thereto may be redacted (none of which redacted provisions adversely affect the availability of or impose additional conditions on, the availability of the Equity Financing) at the Closing), assuming and (b)(i) the funding of the Debt Financing in accordance with the executed Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required AmountSecured Debt Commitment Letter” ”). As , dated as of the date hereof, among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., ▇▇▇▇▇▇▇ Sachs Bank USA, Jefferies Finance LLC, Bank of America, N.A., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ has delivered to the Company & ▇▇▇▇▇ Incorporated, Credit Suisse AG, Credit Suisse Securities (aUSA) a correct LLC, Citigroup Global Markets Inc. and complete fully executed copy of the debt commitment letterNomura Securities International, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement Inc. (as may be amended or modified in accordance with the terms hereof, the “Secured Debt Commitment LetterFinancing Sources”) and all fee letters, engagement letters and other arrangements associated therewith (bprovided, that provisions in the fee or engagement letter related solely to fees and economic terms agreed to by the parties thereto may be redacted (none of which redacted provisions adversely affect the availability of or impose additional conditions on, the availability of the Debt Financing (as defined below) a copy of any fee letters related to at the Closing) and (ii) the executed Debt Commitment Letter (the “Fee Unsecured Debt Commitment Letter”), dated as of the date hereof, among PSP Investments Credit USA LLC and Ares Capital Management LLC (together with the Secured Debt Financing Sources, the “Debt Financing Sources”) and all fee letters, engagement letters and other arrangements associated therewith (provided, that provisions in the fee or engagement letter related solely to fees and economic terms agreed to by the parties thereto may be redacted (none of which redacted provisions adversely affect the availability of or impose additional conditions on, the availability of the Debt Financing (as defined below) at the Closing) (such Secured Debt Commitment Letter, Unsecured Debt Commitment Letter and related term sheets, including all exhibits, schedules and annexes thereto and each such fee letter and engagement letter, collectively, the “Debt Commitment Letters” and, together with the Debt Equity Commitment Letter, the “Financing Commitment Letters”) (which may be redacted to remove the fee amountsprovide, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions oftherein, debt financing in the Debt Commitment Letter, the lender thereunder has committed to lend the amounts aggregate amount set forth therein for the purposes set forth in such Debt Commitment Letter purpose of funding the transactions contemplated by this Agreement (being collectively referred to as the “Debt Financing” and, together with the Equity Financing, the “Financing”). As None of the Commitment Letters has been amended or modified prior to the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated and no such amendment or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated or pending (except with respect to adding lenders or agents), and the respective commitments contained in the Debt Commitment Letter Letters have not been withdrawn, rescinded, amended, restated terminated or otherwise modified rescinded in any respect prior to the execution respect, and delivery of this Agreement (in each caseno such withdrawal, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents termination or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter rescission is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exceptioncontemplated. There are no conditions precedent side letters or other Contracts or arrangements related to the obligation to make funding or investing, as applicable, of the Debt full amount of the Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letters furnished to the Company pursuant to this Section 6.7 (except with respect to the Equity Financing, any contracts between Buyer or its Affiliates, on the one hand, and any third party, on the other hand, which have no adverse impact on the funding of the full amount of the Equity Financing pursuant to the Equity Commitment Letter at or prior to the Closing on the terms and conditions set forth in this Agreement and the Equity Commitment Letter). Assuming the satisfaction accuracy of the representations and warranties set forth in Article IV and Article V and the conditions set forth in Section 6.01 and 6.028.1 are satisfied at the Closing, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As as of the date of this Agreementhereof, (i) no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent orBuyer or any of its Affiliates, to as applicable, under the Knowledge of Parent, any other parties thereto under any term or condition Commitment Letters. Assuming the accuracy of the Debt Commitment Letter, representations and (ii) assuming the satisfaction or waiver of warranties set forth in Article IV and Article V and the conditions set forth in Section 6.01 8.1 are satisfied at Closing and assuming the accuracy of Seller’s representations and warranties in Section 6.02 5.5, the aggregate proceeds contemplated to be provided under the Commitment Letters will, together with Cash on Hand and taking into account the Marketing Periodother cash available to Buyer and its Affiliates, Parent does be sufficient for Buyer to pay and satisfy in full (w) the obligations pursuant to this Agreement to pay the Estimated Transaction Consideration and the Additional Transaction Consideration (if any), (x) all other amounts payable at Closing pursuant to Article III, (y) all fees and expenses of Buyer and its Affiliates in connection with the transactions contemplated by this Agreement and (z) all other obligations under this Agreement. The Commitment Letters are not subject to any conditions or other contingencies (including pursuant to any “flex” provisions in the related fee letter or otherwise) other than as expressly set forth therein and are in full force and effect and are the legal, valid, binding and enforceable obligations of Buyer, as applicable, and each of the other parties thereto, as the case may be, subject to the Bankruptcy and Equity Exception. All commitments and other fees required to be paid under the Commitment Letters prior to the date hereof have any been paid in full. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV and Article V and the conditions set forth in Section 8.1 are satisfied at the Closing, Buyer has no reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt full amount of the Financing or any other funds necessary to pay the Required Amount will not be available to Parent Buyer on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters , and customary engagement letters with respect to the Debt Financing (none of which reduces the amount Buyer is not aware of the Debt Financing below the Required Amount existence of any fact or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), event as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating hereof that would be expected to cause such conditions to the Debt Commitment Letter Financing not to which Parent be satisfied or any the full amount of its Affiliates is a party, other than as expressly set forth in the Financing Lettersnot to be available.
Appears in 1 contract
Sources: Stock Purchase Agreement (Envision Healthcare Corp)
Financing. At the Closing(a) Purchaser and Merger Sub have received and accepted an executed and binding commitment letter dated October 16, assuming the funding of the Debt Financing 2016, as may be amended, modified or replaced in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters Section 5.11(a) hereof (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) from Citigroup Global Market Inc., Credit Suisse AG, Credit Suisse Securiites (USA) LLC, Barclays Bank PLC, Deutsche Bank AG New York Branch and Deutsche Bank Securities Inc. (as such parties may be supplemented or amended in accordance with Section 5.11(a) hereof, collectively, the “Lenders”), relating to the commitment of the Lenders to provide, subject only to the terms and conditions thereof, the full amount of the debt financing stated therein (the “Debt Financing”).
(b) a copy of any fee letters related to the Debt Commitment Letter Purchaser and Merger Sub have received and accepted an executed and binding commitment letter dated October 16, 2016 (the “Fee LettersEquity Commitment Letter” and, together with the Debt Commitment Letter, the “Financing Commitment Letters”) from Onex Partners IV, L.P. (which may be redacted the “Equity Investor”), relating to remove the fee amountscommitment of the Equity Investor, economic subject only to the terms and conditions thereof, to invest in Purchaser the terms full amount of the cash equity financing stated therein (the “Equity Financing” and, together with the Debt Financing, the “Financing”). Purchaser has delivered to Supervalu true, complete and correct copies of the executed Commitment Letters and any fee letters related thereto (in the case of any “flex” such fee letters only, redacted for provisions that are customarily redacted in transactions of this typerelated to fees and other economic terms, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or could materially and adversely affect the conditionality, enforceability, availability, termination or availability aggregate principal amount of the Debt Financing). Pursuant to.
(c) Except as set forth in the Commitment Letters, and subject there are no conditions precedent to the terms obligations of the Lenders and conditions of, the Equity Investor to provide the Financing or any contingencies that would permit the Lenders or the Equity Investor to reduce the total amount of the Financing. Other than (i) any fee letter related to the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes Letter and (ii) as expressly set forth in such Debt or expressly contemplated by the Commitment Letter Letters, there are no side letters or other agreements, contracts or arrangements relating to the funding or investing, as applicable, of the full amount of the Financing.
(d) Assuming the “Debt Financing”). Financing is funded in accordance with the Commitment Letters, Purchaser will, and will cause Merger Sub to, have cash proceeds on the Closing Date in an amount sufficient to pay the Purchase Price, to pay all related fees and expenses required to be paid by Purchaser and Merger Sub in connection with the transactions contemplated by this Agreement and the Services Agreement and to satisfy all of the other payment obligations of Purchaser and Merger Sub contemplated hereunder.
(e) As of the date hereof, assuming the satisfaction in full of the conditions set forth in Sections 8.1 and 8.2, neither Purchaser nor Merger Sub has reason to believe that it will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments Financing contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement Letters.
(in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). f) As of the date of this Agreement, the Debt Commitment Letter is in full force Letters are valid, binding obligations of Purchaser and effect and constitutes the legal, valid and binding obligation of Parent Merger Sub and, to the Knowledge of ParentPurchaser, each of the other parties thereto, and enforceable in accordance with its terms against Parent their respective terms, and are in full force and effect, and, to assuming the Knowledge of Parent, each accuracy of the other parties thereto, subject to the Bankruptcy representations and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly warranties set forth in Article III such that the Debt Commitment Letter. Assuming the satisfaction of the conditions condition set forth in Section 6.01 and 6.028.2(a) would be satisfied, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As as of the date of this Agreementhereof, (i) no event has occurred whichthat, with or without notice, lapse of time time, or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to Purchaser or Merger Sub under the Knowledge of Parent, any other parties thereto under any term or condition terms and conditions of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver Letters. As of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Perioddate hereof, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied no Commitment Letter has been amended, restated or that the Debt Financing otherwise modified or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid waived on or prior to the date of this Agreement and no such amendment, modification or restatement is contemplated, and the respective commitments contained in connection with the Debt Commitment Letters have not been withdrawn, modified or rescinded on or prior to the date of this Agreement. Purchaser and Merger Sub have paid in full (or caused to be paid) any and all commitment fees or other fees or expenses required to be paid pursuant to the terms of the Commitment Letters on or before the date of this Agreement.
(g) In no event shall the receipt or availability of any funds or financing (including the Financing) by Purchaser, Merger Sub or any of their Affiliates or any other financing or other transactions be a condition to any of Purchaser’s or Merger Sub’s obligations hereunder.
(h) Assuming the satisfaction of the conditions to Purchaser’s and Merger Sub’s obligation to consummate the Merger and the accuracy of the representations and warranties set forth in Article III and the certificate delivered pursuant to Section 8.2(c), and immediately after giving effect to the consummation of the transactions contemplated by this Agreement, the Separation Agreement and the Services Agreement, Purchaser and its Subsidiaries (including Merger Sub and, after Closing, the Save-A-Lot Entities), on a consolidated basis, will be Solvent. Except for the Fee Letters and customary engagement letters For purposes of this Section 4.6(h), “Solvent” means, with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionalityany Person, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Letters.that:
Appears in 1 contract
Sources: Merger Agreement (Supervalu Inc)
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect Buyer has prior to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has of this Agreement delivered to the Company (a) a correct and complete fully executed copy of the debt commitment lettercopies, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement Agreement, of: (as may be amended or modified in accordance with a) executed equity commitment letters (the “Equity Funding Letters”) from certain parties (the “Equity Providers”) to provide, subject to the terms hereofand conditions therein, equity financing in the aggregate amounts set forth therein (being collectively referred to as the “Equity Financing”), and (b) executed debt commitment letters and redacted fee letters (the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment LetterEquity Funding Letters, the “Financing Letters”) from the financial institutions identified therein (which may be redacted to remove the fee amountstogether with their Affiliates, economic terms equityholders, members, officers, directors, employees and the terms of any “flex” provisions that are customarily redacted representatives involved in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below and their successors and assigns, the Required Amount or adversely affect “Debt Financing Source”, together with the conditionalityEquity Providers, enforceabilitythe “Financing Sources”) to provide, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions oftherein, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts debt financing in an aggregate amount set forth therein for the purposes set forth in such Debt Commitment Letter (being collectively referred to as the “Debt Financing”). As of ; and together with the date hereof, neither Equity Financing collectively referred to as the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter“Financing”). As of the date of this Agreement, neither the Equity Funding Letters nor Debt Commitment Letter Letters have been amended or modified and no such amendment or modification is contemplated, and the respective commitments contained in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash such letters have not been withdrawn or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amountrescinded. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts Contracts or arrangements of any kind relating related to the Debt Commitment Letter funding or investing, as applicable, of the financing contemplated pursuant to which Parent or any of its Affiliates is a party, the Financing Letters other than as expressly set forth in the Financing LettersLetters furnished to the Company pursuant to this Section 5.6 and other than agreements among the Equity Providers regarding the terms of the equity arrangements. Assuming the Financing is funded in accordance with the terms and conditions of the Financing Letters and assuming the accuracy of the representations and warranties set forth in Article III and performance by the Company of its obligations hereunder, the net proceeds contemplated by the Financing Letters will, together with the cash or cash equivalents available to the Company and its Subsidiaries, in the aggregate be sufficient for Buyer and Buyer Sub to consummate the transactions contemplated by this Agreement and the other Transaction Documents on the terms and conditions contemplated hereby and thereby, including the payment of all amounts payable at Closing pursuant to Section 2.1. As of the date of this Agreement, the Financing Letters in the form so delivered are, as to Buyer and, to the best of Buyer’s knowledge, the other parties thereto, valid, binding and enforceable obligations (except as such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws affecting or relating to creditors’ rights generally; and (ii) is subject to general principles of equity), in full force and effect, and not subject to any conditions precedent or other similar contractual contingencies other than as set forth therein. Buyer has fully paid any and all commitment fees, if any, or other fees required by the Financing Letters to be paid as of the date of this Agreement to the extent the same are due and payable and Buyer is unaware of any fact or occurrence existing on the date hereof that would reasonably be expected to make any of the assumptions or any of the statements set forth in the Financing Letters inaccurate or that would reasonably be expected to cause the Financing Letters to be ineffective. Assuming satisfaction of the conditions set forth in Article VII, as of the date hereof, Buyer has no reason to believe that the conditions to the funding contemplated by the Financing Letters will not be satisfied. The obligations of Buyer under this Agreement are not contingent on the availability of financing for, or related to, the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Dynacast International Inc.)
Financing. At (a) Buyer has sufficient cash to pay when (and if) due, in accordance with this Agreement, the Closing, assuming the funding of Buyer Termination Fee.
(b) Assuming the Debt Financing contemplated by the Debt Commitment Letters is consummated substantially in accordance with their terms, Buyer (i) will have sufficient cash, available lines of credit or other sources of immediately available funds to pay in cash, when due, the Purchase Price and any expenses incurred by Buyer in connection with the Transaction, and (ii) will have the financial resources and capabilities to perform its obligations hereunder. Buyer has delivered to Seller correct and complete copies of Buyer’s Debt Commitment Letters in effect on the date hereof (such Debt Commitment Letters, the “Initial Debt Commitment Letters”; and the Debt Commitment Letter Financing specified therein, the “Initial Debt Financing”), excluding any related Fee and after giving effect to any Sponsor Letters (the “flex” provision in Initial Fee and Sponsor Letters”). Each of the Initial Debt Commitment Letter Letters has been duly executed by Buyer and, to the Knowledge of Buyer, each other Person party thereto, and, as of the date hereof, each of the Initial Debt Commitment Letters is in full force and effect and, to the Knowledge of Buyer, is valid, binding and enforceable against each other Person party thereto in accordance with its terms. Buyer and its Affiliates have paid any and all fees and expenses that the Initial Debt Commitment Letters and Initial Fee and Sponsor Letters require to have been paid on or prior to the related fee letters (including date hereof. The Initial Debt Commitment Letters contain all of the conditions precedent to the obligations of the Lenders thereunder to make the Initial Debt Financing available to Buyer on the terms therein and no conditions precedent or other terms with respect to fees such obligations are contained in the Initial Fee and original issue discount), Parent will have immediately available funds Sponsor Letters or in any side letters or other Contracts to which Buyer or an amount as Affiliate thereof is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”)party. As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 8.1 and Section 6.02 and taking into account the Marketing Period8.2, Parent Buyer does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available consummated as contemplated by the Initial Debt Commitment Letters. Buyer acknowledges and agrees that the obligation of Buyer to Parent on consummate the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to Transaction in accordance with the extent required to be paid on or prior to the date terms and conditions of this Agreement in connection with (including Section 2.1) is not conditioned upon the closing of the Debt Financing. Except for , Buyer’s receipt of the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount proceeds of the Debt Financing below or Buyer’s ability to finance or pay the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersPurchase Price.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ciber Inc)
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct Purchaser shall be entitled to encumber the Hotels or any of them with one or more Authorized Mortgages which are expressly subordinate to this Agreement or in connection with which the following terms and complete fully executed copy conditions are satisfied:
(i) the loan or other debt secured by such Authorized Mortgage shall not be cross-collateralized with other property or hotels which are not managed or franchised by Manager, IHG or their respective Affiliates;
(ii) the principal amount secured by such Authorized Mortgage shall not exceed the sum of seventy five percent (75%) (or, if less than four (4) Hotels secure such principal amount, sixty five percent (65%)) of the debt commitment letter, dated as sum of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect the fair market value as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, granting of such Authorized Mortgage of the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms Pledged Hotels and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in other properties securing such Debt Commitment Letter principal amount;
(the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As iii) as of the date of this Agreementthe granting of such Authorized Mortgage, the Debt Commitment Letter Service Coverage Ratio associated with such loan or debt secured thereby shall not be less than (i)1.4 if fewer than four (4) Hotels secure such loan or other debt or (ii) 1.3 if four (4) or more Hotels secure such loan or other debt; and
(iv) the holder of such Authorized Mortgage shall execute and deliver to Manager (Manager agreeing to likewise execute and deliver to such holder) a so-called subordination, non-disturbance and attornment agreement which shall provide that:
(A) this Agreement and Manager’s rights hereunder are subject and subordinate to the Authorized Mortgage, the lien thereof, the rights of the holder thereof and to any and all advances made thereunder, interest thereon or costs incurred in connection therewith;
(B) so long as this Agreement is in full force and effect and constitutes the legalthere exists no Manager Default which has not been cured within any applicable notice or grace period, valid and binding obligation Manager’s rights under this Agreement shall not be disturbed by reason of Parent and, such subordination or by reason of foreclosure of such Authorized Mortgage or receipt of deed in lieu of foreclosure;
(C) Manager shall attorn to the Knowledge holder or the purchaser at any such foreclosure or the grantee of Parentany such deed (each, each a “Successor Purchaser”);
(D) in the event of such attornment, the terms of this Agreement binding on Purchaser and Manager shall continue in full force and effect as a direct agreement between such Successor Purchaser and Manager, upon all the terms, conditions and covenants set forth herein, except that the Successor Purchaser shall not be (1) bound by any payment of Owner’s Priority, Owner’s Percentage Priority or the Residual Distribution in advance of when due; (2) bound by any amendment or modification of this Agreement made after the date that Manager first had written notice of such Authorized Mortgage without the consent of the other parties theretoholder thereof; (3) liable in any way to Manager for any act or omission, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash neglect or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, Purchaser or Owner under this Agreement; (4) obligated to perform any work or improvements to be done by Purchaser or Owner or to make any advances except for those advances to be made pursuant to Section 5.2(c) from and after the Knowledge date on which such Successor Purchaser acquired the Hotel(s); or (5) subject to any counterclaim or setoff which theretofore accrued to Manager against Purchaser or Owner;
(E) In the event of Parent, a casualty or condemnation affecting any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent Pledged Hotel which does not have any reason to believe that any of result in the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date termination of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to such Pledged Hotel, the Debt Financing net insurance proceeds or Award shall be applied to the restoration of such Hotel as herein provided; and
(none of which reduces F) Such other terms as are customary for similar agreements.
(b) In the amount event less than all of the Debt Financing below Hotels are to secure the Required Amount loan or adversely affects other debt secured by an Authorized Mortgage, Owner shall have the conditionality, enforceability, termination or availability right to cause the Pledged Hotels to be managed pursuant to a separate management agreement which agreement shall be for a term equal to the unexpired portion of the Debt Financing)Term and otherwise on substantially the same terms of this Agreement except as otherwise provided herein, as of provided that the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Letters.Pledged
Appears in 1 contract
Sources: Management Agreement (Hospitality Properties Trust)
Financing. At (a) The Landlords shall be entitled to encumber the ClosingHotels or any of them with one or more Authorized Mortgages which is expressly subordinate to this Agreement or in connection with which the following terms and conditions are satisfied; provided, assuming the funding however, none of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect following terms or conditions needs to any “flex” provision in the Debt Commitment Letter or the related fee letters (including be satisfied with respect to fees and original issue discountthe Assumed Mortgage:
(i) the loan or other debt secured by such Authorized Mortgage shall not be cross-collateralized with other property or hotels which are not managed or franchised by Manager, IHG or their respective Affiliates;
(ii) the principal amount secured by such Authorized Mortgage shall not exceed the sum of seventy five percent (75%) (or, if less than four (4) Hotels secure such principal amount, sixty five percent (65%), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation ) of the aggregate amount sum of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect fair market value as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, granting of such Authorized Mortgage of the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms Pledged Hotels and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in other properties securing such Debt Commitment Letter principal amount;
(the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As iii) as of the date of this Agreementthe granting of such Authorized Mortgage, the Debt Commitment Letter Service Coverage Ratio associated with such loan or debt secured thereby shall not be less than (i)1.4 if fewer than four (4) Hotels secure such loan or other debt or (ii) 1.3 if four (4) or more Hotels secure such loan or other debt; and
(iv) the holder of such Authorized Mortgage shall execute and deliver to Manager (Manager agreeing to likewise execute and deliver to such holder) a so-called subordination, non-disturbance and attornment agreement which shall provide that:
(A) this Agreement and Manager's rights hereunder are subject and subordinate to the Authorized Mortgage, the lien thereof, the rights of the holder thereof and to any and all advances made thereunder, interest thereon or costs incurred in connection therewith;
(B) so long as this Agreement is in full force and effect and constitutes the legalthere exists no Manager Event of Default, valid and binding obligation Manager's rights under this Agreement shall not be disturbed by reason of Parent and, such subordination or by reason of foreclosure of such Authorized Mortgage or receipt of deed in lieu of foreclosure;
(C) Manager shall attorn to the Knowledge holder or the purchaser at any such foreclosure or the grantee of Parentany such deed (each, each a "Successor Landlord");
(D) in the event of such attornment, the terms of this Agreement binding on the Landlords and Manager shall continue in full force and effect as a direct agreement between such Successor Landlord and Manager, upon all the terms, conditions and covenants set forth herein, except that the Successor Landlord shall not be (1) bound by any payment of Owner's Fixed Priority, Owner's Percentage Priority or the Residual Distribution in advance of when due; (2) bound by any amendment or modification of this Agreement made after the date that Manager first had written notice of such Authorized Mortgage without the consent of the other parties theretoholder thereof; (3) liable in any way to Manager for any act or omission, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash neglect or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, any Landlord or Owner under this Agreement; (4) obligated to perform any work or improvements to be done by any Landlord or Owner or to make any advances except for those advances to be made pursuant to Section 5.2(c) from and after the Knowledge date on which such Successor Landlord acquired the Hotel(s); or (5) subject to any counterclaim or setoff which theretofore accrued to Manager against any Landlord or Owner;
(E) In the event of Parent, a casualty or condemnation affecting any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent Pledged Hotel which does not have any reason to believe that any of result in the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date termination of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to such Pledged Hotel, the Debt Financing net insurance proceeds or Award shall be applied to the restoration of such Hotel as herein provided; and
(none of which reduces F) Such other terms as are customary for similar agreements.
(b) In the amount event less than all of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there Hotels are no side letters to secure a loan or other agreementsdebt secured by an Authorized Mortgage, contracts or arrangements of any kind relating Owner shall have the right to cause the Pledged Hotels to be managed pursuant to a separate management agreement with Manager which agreement shall be for a term equal to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Letters.unexpired portion of
Appears in 1 contract
Sources: Management Agreement (Hospitality Properties Trust)
Financing. At (a) Parent has delivered to the ClosingCompany true and complete copies of (i) the executed commitment letter, assuming dated as of the date hereof (the “Equity Commitment Letter”), among the Parent, Sub and each other party thereto (the “Equity Financing Sources”), pursuant to which the applicable Equity Financing Source has committed, subject only to the terms thereof, to invest the amounts set forth therein on the date on which the Closing should occur pursuant to Section 1.02 and to which the Company is an express third party beneficiary in accordance with the terms thereof and subject to the conditions set forth therein (the “Equity Financing”), and (ii) the executed commitment letter (together with the term sheet and any other annexes, exhibits, schedules and other attachments thereto), dated as of the date hereof (the “Debt Commitment Letter” and, together with the Equity Commitment Letter, the “Financing Commitments”) from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Bank of America, ▇.▇. ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇▇ Fargo Securities, LLC, Citigroup Global Markets Inc., ▇▇▇▇▇▇▇ Sachs Lending Partners LLC, Royal Bank of Canada RBC Capital Markets, UBS AG, Stamford Branch and UBS Securities LLC, pursuant to which certain of the Debt Financing Sources (the Debt Financing Sources, together with the Equity Financing Sources, the “Financing Sources”) have committed, subject only to the terms thereof, to lend the amounts set forth therein for purposes of funding the transactions contemplated by this Agreement on the date on which the Closing should occur pursuant to Section 1.02 (the “Debt Financing” and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company true and complete copies of any fee letter (with only the fee amounts, pricing caps and certain other economic terms (none of which individually or in the aggregate would reduce the amount of the Debt Financing or adversely affect the availability or conditionality of the Debt Financing or delay or prevent the Closing or make the funding of the Debt Financing less likely to occur) redacted) relating to the Debt Commitment Letter (any such fee letter, a “Fee Letter”) and any engagement letters or other agreements relating to the Debt Financing.
(b) Assuming the Financing is funded in accordance with the Debt Commitment Letter Financing Commitments and after giving effect the satisfaction of the conditions set forth in Section 6.01 and Section 6.02 (other than those conditions that by their nature are to any “flex” provision in be satisfied at the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discountClosing), the aggregate net proceeds from the Financing when funded in accordance with the Financing Commitments (together with the available cash, cash equivalents and marketable securities of Parent will have immediately available funds in an amount as is necessary and Parent’s Subsidiaries and the purchase price received by the Company and the Company Subsidiaries pursuant to consummate the Transactions, Bank Purchase Agreement on the Closing Date) are sufficient to fund all of the amounts required to be provided by Parent or Sub for the consummation of the transactions contemplated hereby and are sufficient for the satisfaction when due of all of the obligations of Parent and Sub under this Agreement (including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Aggregate Merger Consideration, other the amounts payable pursuant to Article II (including Section 2.03, the payment of all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees costs and expenses of or payable by Parent, Merger Sub or the transactions contemplated hereby (including any obligations of the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid ) which become due or payable by the Surviving Corporation or any Company Subsidiary in connection with, or as a result of, the consummation Merger and any repayment or refinancing of Indebtedness required in connection therewith or contemplated by any of the Transactions Financing Commitments) on the Closing Date (collectively, the “Required AmountFinancing Uses”). .
(c) As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy all of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that Commitments are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes have not been withdrawn, terminated or rescinded or otherwise amended, supplemented or modified in any respect. Each of the Financing Commitments, in the form delivered to the Company, is, as of the date hereof, a legal, valid and binding obligation of Parent and, to the Knowledge knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge knowledge of Parent, each of the such other parties theretoin accordance with its terms, subject to the Bankruptcy and Equity Exception. There As of the date hereof, there are no conditions precedent side letters or other Contracts or arrangements (except for any Fee Letters, engagement letters with respect to the obligation to make the Debt Financing available to Parent pursuant and any other agreements, each of which have been delivered to the Debt Commitment Letter, other than as expressly set forth Company in accordance with the Debt Commitment Letter. Assuming the satisfaction provisions of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant 4.07(a)) relating to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required AmountCommitments. As of the date of this Agreementhereof, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent under any term, or a failure by Parent or, to the Knowledge knowledge of Parent, any other parties party thereto under to satisfy any term or condition condition, of the Debt Commitment Letter, and (ii) assuming Financing Commitments. Assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account (other than those conditions that by their nature are to be satisfied at the Marketing PeriodClosing), neither Parent does not have any nor Sub has reason to believe that it, any Equity Financing Source or any Debt Financing Source would be unable to satisfy on a timely basis any term or condition of the conditions Financing Commitments required to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Dateby it. Parent has and Sub have fully paid (or caused to be paid) any and all commitment fees or other fees to required by the extent required Financing Commitments to be paid on or prior to before the date of this Agreement in connection with Agreement. There are no conditions precedent or other contingencies between Parent or Sub, on the Debt Financing. Except for one hand, and any Financing Source, on the Fee Letters and customary engagement letters with respect other hand, related to the Debt Financing (none funding or investing, as applicable, of which reduces the full amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersCommitments.
Appears in 1 contract
Sources: Merger Agreement (Cabelas Inc)
Financing. At Purchaser has furnished to the ClosingCompany a true and complete copy of (a) an executed equity commitment letter, assuming the funding dated as of the Debt Financing in accordance with the Debt Commitment Letter June 27, 2016, by and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub between Purchaser and the Surviving Corporation of Sponsor (together with all exhibits, schedules, annexes, supplements and amendments thereto, the aggregate amount of the Merger Consideration, other amounts payable “Equity Commitment Letter”) pursuant to Article II (including all which the Sponsor has committed to invest, directly or indirectly, in Purchaser the cash amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions set forth therein (the “Required AmountEquity Financing”). As of , subject to the date hereofterms and conditions set forth in the Equity Commitment Letter, and (b) an executed Third Amendment to Credit Agreement (the “Incremental Amendment”), dated June 27, 2016, among the Sponsor, ▇▇▇▇▇▇ has delivered to ▇▇▇▇▇▇▇ Senior Funding, Inc., BNP Paribas, Credit Agricole Corporate and Investment Bank, SunTrust Bank, Credit Suisse AG, Cayman Islands Branch, as the Company administrative agent, and the other parties thereto (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including together with all exhibits, schedules, annexes annexes, supplements and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereofthereto, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Equity Commitment Letter, the “Financing Commitment Letters”) pursuant to which such lending parties named therein have committed to provide the Sponsor with at least $1,850.0 million in debt financing (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing” and, together with the Equity Financing, the “Financing”). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming Purchaser will have, upon receipt by the satisfaction Sponsor or a controlled subsidiary of the conditions set forth in Section 6.01 and 6.02, the net proceeds Sponsor of the Debt Financing willfunds at Closing in accordance with the Commitment Letters, sufficient available funds on hand to consummate the purchase of the Shares as contemplated herein, including to (i) pay the Purchase Price in accordance with ARTICLE III, (ii) make the other payments, and assume the other obligations, required for Closing pursuant to Section 4.2(b) and (iii) pay any fees and expenses allocated to Purchaser pursuant to this Agreement. Each Commitment Letter, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant form so furnished to the Financing LettersCompany, including after giving is valid, binding and in full force and effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) and no event has occurred whichthat, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent orPurchaser or the Sponsor, to the Knowledge of Parentas applicable, any other parties thereto under any term or condition of the Debt thereof. The Commitment Letter, and (ii) assuming the satisfaction Letters have not been amended or waiver of the conditions set forth modified in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or respect prior to the date of this Agreement in connection with (other than as attached thereto) and as of the Debt Financing. Except for date of this Agreement, (i) no such amendment or modification is contemplated by the Fee Letters and customary engagement letters Purchaser (other than, with respect to the Debt Financing (none of which reduces Commitment Letter, any amendments or modifications to the amount of the Debt Financing below the Required Amount extent such amendments or modifications could not reasonably be expected to in any way materially delay or adversely affects affect the conditionalityClosing or the transactions contemplated by this Agreement) and (ii) the commitments contained in the Commitment Letters have not been withdrawn, enforceabilityrescinded or terminated. Except for the PIPE SPA, termination or availability of the Debt Interim Sponsors Agreement, any engagement letters related to the Financing), as of the date hereof, there are no side letters or other agreements, contracts arrangements or arrangements of any kind relating to the Debt Commitment Letter understandings (including fee or side letters, but excluding customary structuring or advisor fees) to which Parent Purchaser or any of its Affiliates is a partyparty related to the funding or investing, as applicable, of the full amount of the Financing or that could reasonably be expected to adversely affect the timing of Closing. There are no conditions precedent or other contingencies relating to the funding of the full amount of the Equity Financing or the Debt Financing by the Financing Sources, other than as expressly specifically set forth the in the respective Commitment Letter. As of the date hereof, assuming that the conditions set forth in Section 9.1 are satisfied at or prior to the Closing Date, Purchaser does not have any reason to believe that any of the conditions to the Financing Letterswill not be satisfied on a timely basis.
Appears in 1 contract
Financing. At (a) DT and MetroPCS shall consult with each other and mutually cooperate in good faith to effect the ClosingMetroPCS Finance Transactions.
(b) Prior to or on the Closing Date, assuming unless an alternative structure shall have been agreed by the funding Parties in good faith, (i) DT shall cause TMUS and its Subsidiaries to assign, and DT or one of its Subsidiaries designated by DT shall assume and procure the Debt Financing in accordance with the Debt Commitment Letter release of TMUS and after giving effect its Subsidiaries from all obligations under, all Intercompany Indebtedness owed by TMUS and its Subsidiaries to any “flex” provision in the Debt Commitment Letter DT or the related fee letters one of its Subsidiaries (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company than TMUS and its Subsidiaries, required to be paid in connection with, or ) (which has an aggregate principal amount of approximately $14.4 billion as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith), including any accrued interest thereon and all exhibitsother amounts payable by, schedulesand other obligations (including contingent obligations) of, annexes TMUS and amendments its Subsidiaries thereunder and all related documentation, in exchange for an obligation of TMUS to disburse to DT or one of its Subsidiaries designated by DT the principal amount of and all accrued interest on the Intercompany Indebtedness so assumed and all other amounts payable by, and other obligations (including contingent obligations) of, TMUS and its Subsidiaries thereunder and all related documentation; (ii) DT shall cause TMUS to issue and deliver to DT or one of its Subsidiaries designated by DT, and DT shall purchase or cause such letter designated Subsidiaries to purchase, notes in effect as the aggregate principal amount of the date of this Agreement $15,000,000,000 (as may be amended or modified in accordance together with the terms hereofany Additional DT Notes issued pursuant to Section 4.13(c) below, the “Debt Commitment LetterDT Notes”) ), which shall have, and (b) a copy be issued pursuant to an indenture containing, the terms set forth on Exhibit F and Exhibit G, respectively, and otherwise reasonably acceptable to DT and MetroPCS, in exchange for an obligation of any fee letters related DT or one of its Subsidiaries to disburse to TMUS an amount equal to the Debt Commitment Letter aggregate principal amount of such DT Notes; (iii) DT or one of its Subsidiaries designated by DT shall have an obligation to pay TMUS an amount equal to the “Fee Letters” andexcess, together with determined on an arm's length basis (as reasonably determined by TMUS and DT taking into account the Debt Commitment Letterrespective interest rates, maturity profile and other relevant factors and supported by an investment bank fair market value analysis), of the “Financing Letters”fair market value of (A) (which may be redacted the portion of the DT Notes having an aggregate principal amount equal to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below Intercompany Indebtedness assumed by DT or one of its Subsidiaries over (B) the Required Amount Intercompany Indebtedness assumed by DT or adversely affect one of its Subsidiaries; and (iv) TMUS and DT or one of its Subsidiaries designated by DT shall set off the conditionalitypayment obligations described in clauses (i), enforceability(ii) and (iii) against each other and TMUS shall distribute as a dividend to Holding, termination prior to the Closing Date, the net receivable resulting from such setoff. As of 12:01 a.m., prevailing Eastern Time, on the Closing Date, there shall be no Intercompany Indebtedness outstanding owed by TMUS and its Subsidiaries to DT or availability one of its Subsidiaries (other than TMUS and its Subsidiaries), the DT Notes shall be issued and outstanding, and DT shall have no further obligation to disburse to TMUS all or any portion of the Debt Financing). Pursuant topurchase price of the DT Notes.
(c) DT shall cause TMUS to issue and deliver to DT or one of its Subsidiaries designated by DT, and DT shall purchase or cause such designated Subsidiaries to purchase, additional notes (“Additional DT Notes”) which shall have, and be issued pursuant to an indenture containing, the terms, set forth on Exhibit G in accordance with and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for on Exhibit I. In connection with the purposes foregoing, TMUS shall pay to DT, in U.S. dollars in immediately available funds, such applicable fees as are set forth on Exhibit I (and, except as set forth on Exhibit I any such fees shall not be refundable for any reason whatsoever and shall be in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor addition to any Fee Letter has been amended, restated other amounts payable to DT pursuant to this Agreement or otherwise modified or waived prior to in connection with the execution Transaction).
(d) DT and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment LetterTMUS shall, and (ii) assuming the satisfaction or waiver shall cause each issuer of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing DT Notes or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on Affiliate of DT that holds any DT Notes to, enter into an agreement at or prior to the date of this Agreement in connection with Closing reflecting the Debt Financing. Except for the Fee Letters and customary engagement letters with respect terms set forth on Exhibit J.
(e) On or prior to the Debt Financing Closing Date, DT shall cause TMUS to enter into and cause to become effective the TMUS Working Capital Facility with DT or one of its Subsidiaries designated by DT.
(none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of f) From and after the date hereofhereof until the Closing Date, there are no side letters and without limiting any other rights of MetroPCS or other agreementsits Subsidiaries hereunder, contracts or arrangements of any kind relating MetroPCS shall be permitted to offer and sell the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth Permitted MetroPCS Notes on the terms described in the Financing Lettersdefinition thereof.
Appears in 1 contract
Sources: Business Combination Agreement (Metropcs Communications Inc)
Financing. At the Closing, assuming the funding of the Debt Financing in accordance (a) Concurrently with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount)execution of this Agreement, Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company true and complete copies of the duly executed (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even the date herewithhereof, among the Debt Financing Sources party thereto and Parent (including all exhibits, schedules, annexes, supplements, joinders and amendments thereto, the “Debt Commitment Letter”), together with true and complete copies of executed fee letters (including all exhibits, schedules, annexes and amendments thereto, collectively, the “Fee Letters”); provided that provisions in the Fee Letters related solely to fees, market “flex” terms and other economic and commercially sensitive terms may be redacted, so long as such redactions do not cover terms that would adversely affect the amount, the conditionality, availability or termination of any portion of Debt Financing required to satisfy the Funding Obligations at Closing, pursuant to which, and subject to the terms and conditions therein, the Debt Financing Sources have committed to lend the amounts set forth therein to Parent for the purpose of funding a portion of the Contemplated Transactions (the “Debt Financing”), and (b) an equity commitment letter in effect from the Equity Investors, dated as of the date hereof (including all exhibits, schedules, annexes and amendments thereto as of the date of this Agreement (as may be amended or modified in accordance with the terms hereofAgreement, the “Debt Equity Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing LettersCommitments”) ), pursuant to which the Guarantors have committed, subject to the terms and conditions therein, to invest the amounts set forth therein (which the “Equity Financing” and, together with the Debt Financing, the “Financing”); provided that fee amounts set forth in the Fee Letters may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, a customary manner so long as none of which redactions covers the redacted terms that would (a) reduce the amount of the Debt Financing below the Required Amount amount that, together with Parent’s other available sources of funding that will be available at the Closing, is required to satisfy the Funding Obligations at Closing, (b) impose any new condition or otherwise adversely amend, modify or expand any conditions precedent to the Debt Financing that would materially delay, materially impede or prevent the Closing from occurring or (c) materially and adversely affect the conditionalityenforceability or termination of, enforceabilitymaterially impair the validity of, termination or availability prevent or materially delay the consummation of the Debt Financing). Pursuant toFinancing at the Closing.
(b) The Equity Commitment Letter provides, and subject will continue to provide, that the Company is an express third-party beneficiary of, and is entitled to enforce the Equity Commitment Letter in accordance with the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”)thereof. As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is The Financing Commitments are in full force and effect and constitutes the are legal, valid and binding obligation obligations of Parent and Merger Sub (as applicable), and, to the Knowledge of ParentParent and Merger Sub, each of the other parties thereto, enforceable in accordance with its their respective terms against Parent and, to the Knowledge of Parent, and Merger Sub and against each of the other parties thereto, as the case may be, subject to the Bankruptcy Enforceability Exceptions. The Financing Commitments, and Equity Exception. There are no conditions precedent the respective commitments or obligations thereunder, have not been withdrawn, terminated, reduced, repudiated, rescinded, amended, supplemented or modified, in any respect, and, to the obligation to make the Debt Financing available to Knowledge of Parent pursuant and Merger Sub with respect to the Debt Commitment Letterother parties to the Financing Commitments, other than as expressly set forth in the Debt Commitment Letter. Assuming assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02Article VI, no such withdrawal, termination, reduction, repudiation, rescission, amendment, supplement or modification is contemplated by any party thereto (other than, in the net proceeds case of the Debt Financing will, in Commitment Letter and the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Fee Letters, including after giving effect customary supplements and/or joinders of additional Debt Financing Sources to the maximum amount of any “flex” provisions) for the payment of the Required Amountbecome party thereto). As of the date of this Agreement, (i) neither Parent nor Merger Sub has, nor, to the Knowledge of Parent and Merger Sub, has any other party to the Financing Commitments, committed any breach of the performance, observance or fulfillment of any covenants, conditions or other obligations set forth in, or is in default of any provision under, any of the Financing Commitments that would reasonably be expected to adversely impact the availability of the Financing in an amount sufficient to satisfy the Funding Obligations, and, to the Knowledge of Parent and Merger Sub, no event has occurred whichor circumstance exists that, with or without notice, lapse of time or both, would or would reasonably be expected to (i) constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, breach or default of any provision on the part of Parent and Merger Sub, or, to the Knowledge of ParentParent and Merger Sub, any other parties thereto Person under any of the Financing Commitments that would reasonably be expected to adversely impact the availability of the Financing in an amount sufficient to satisfy the Funding Obligations, (ii) constitute or result in a failure of Parent and Merger Sub, or, to the Knowledge of Parent and Merger Sub, any other Person to satisfy, or materially delay in satisfaction of, any of the terms or conditions or other contingencies set forth in any of the Financing Commitments in a manner that would reasonably be expected to adversely impact the availability of the Financing in an amount sufficient to satisfy the Funding Obligations or (iii) otherwise result in any portion of the Financing required to satisfy the Funding Obligations at Closing not being available on a timely basis, and in any event, not later than the Closing. As of the date of this Agreement, assuming the satisfaction of the conditions precedent set forth in Article VI and completion of the Marketing Period, neither Parent nor ▇▇▇▇▇▇ Sub has any reason to believe (after giving effect to any market “flex” provisions contained in the Fee Letters) that it will be unable to satisfy, on a timely basis (and in any event not later than the Closing), any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied by it (or otherwise within Parent’s, or the Company’s control) contained in the Financing Commitments or that the Debt full amounts committed pursuant to the Financing or any other funds necessary Commitments required to pay consummate the Required Amount Contemplated Transactions will not be available as of the Closing, in each case, if the terms or conditions to Parent on the Closing Date. Parent has fully paid be satisfied by it (or caused to be paidotherwise within Parent’s, the Company’s, or any of their respective Representatives’ or Affiliates’ control) all commitment fees or other fees to contained in the extent required to be paid on or prior to Financing Commitments are satisfied. As of the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereofAgreement, there are no side letters conditions precedent or other contingencies or conditions required to be satisfied in order for the Financing to be funded in an amount sufficient to satisfy the Funding Obligations other than those conditions expressly set forth in the Financing Commitments, and, to the Knowledge of Parent and Merger Sub, there are no other letters, contracts, agreements, contracts arrangements or arrangements understandings (whether written or oral) that could reasonably be expected to adversely impact the availability of any kind relating the Financing in an amount sufficient to satisfy the Debt Commitment Letter to which Parent or any of its Affiliates is a partyFunding Obligations, other than as expressly set forth in the Financing LettersCommitments.
(c) As of the date of this Agreement, Parent or Merger Sub (or any of their Affiliates) has fully paid any and all commitment fees or other fees or deposits required by the Financing Commitments to be paid on or before the date of this Agreement, and will, subject to the completion of the Closing, pay in full any such amounts due on or before the Closing Date. Assuming satisfaction of the conditions precedent set forth in Article VI, the Financing constitutes all of the financing required for Parent and Merger Sub to consummate the Contemplated Transactions and is sufficient in amount to provide Parent and Merger Sub with the funds necessary for Parent and Merger Sub to consummate the Contemplated Transactions and to satisfy their obligations under this Agreement or otherwise in connection with the Contemplated Transactions, including for Parent to pay (or cause to be paid) the aggregate amounts payable by Parent pursuant to Article II and the payment of all fees, costs and expenses required to be paid by Parent related to the Contemplated Transactions, including such fees, costs and expenses required to be paid by Parent or Merger Sub in order to consummate the Financing in an amount sufficient to satisfy the foregoing payment obligations and to repay the Payoff Indebtedness (collectively, the “Funding Obligations”).
(d) Neither Parent nor Merger Sub is aware of any direct or indirect limitation or other restriction on the ability of any bank, investment bank or other potential provider of the Debt Financing or Equity Financing (including the Debt Financing Sources) from providing or seeking to provide debt or equity financing or financial advisory services to any Person, in each case, in connection with a transaction relating to the Company and the Company Subsidiaries, including the Contemplated Transactions. Notwithstanding anything contained in this Agreement to the contrary, each of Parent and Merger Sub acknowledges and affirms that it is not a condition to the Closing or to any of its obligations under this Agreement that Parent or Merger Sub obtains any Financing for any of the Contemplated Transactions.
Appears in 1 contract
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), a) Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct true and complete fully executed copy copies of the debt (i) executed commitment letterletter(s), dated as of even the date herewith, hereof between Parent and the Debt Financing Sources party thereto (including all exhibits, schedulesschedules and annexes thereto, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any executed fee letters related to the Debt Commitment Letter (the “Fee Letters”) associated therewith (provided that the amount of fees, flex provisions, pricing terms and pricing caps set forth in any fee letter may be redacted; provided, further, that none of the redacted terms (x) could reasonably be expected to adversely affect the availability of the Debt Financing or (y) affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing), as the same may be amended pursuant to Section 5.15, collectively, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letter, the “Financing Commitment Letters”) pursuant to which the lender parties thereto have agreed, subject to the terms and conditions thereof, to provide or cause to be provided the debt financing in the amounts set forth therein (the “Debt Financing”) and (ii) the Equity Commitment Letter, pursuant to which the Guarantors have agreed and committed, subject to the terms and conditions thereof, to invest in Parent, directly or indirectly, the cash amounts set forth therein (such financing, the “Equity Financing” and, together with the Debt Commitment LetterFinancing, the “Financing LettersCommitments”) (which may for the purpose of satisfying Parent’s obligations under this Agreement, including under Article II, and to consummate the transactions contemplated hereby and to pay all fees and expenses reasonably expected to be redacted to remove incurred in connection herewith and with the fee amounts, economic terms Financing. The Equity Commitment Letter provides that the Company is an express third-party beneficiary thereof and Parent and the terms Guarantors will not oppose the granting of any “flex” provisions that are customarily redacted an injunction, specific performance or other equitable relief in transactions connection with the exercise of this typesuch third-party beneficiary rights, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and in each case subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt the Equity Commitment Letter Letter.
(the “Debt Financing”). b) As of the date hereofof this Agreement, neither the Debt Financing Commitment Letter nor any Fee Letter Letters and the terms of the Financing Commitments have not been withdrawn (and no party thereto has been indicated an intent to so withdraw), amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreementwaived, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter therein have not been withdrawn, rescinded, amended, restated modified or otherwise modified rescinded in any respect prior respect, and, except as permitted by Section 5.15(a) or as otherwise agreed to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated writing by the Company, no such amendment, restatement or modification thereto is contemplated; provided that the existence or exercise of “market flex” provisions contained in the Fee Letters shall not constitute an amendment or modification of the Debt Financing Commitment Letter). As of the date of this Agreement, the Debt Financing Commitment Letter is Letters are in full force and effect and constitutes constitute the legal, valid and binding obligation of Parent and, to the Knowledge knowledge of Parent, each of the other parties thereto, enforceable against each party thereto in accordance with its terms against Parent and(in each case, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, rehabilitation, liquidation, preferential transfer, moratorium and similar Laws now or hereafter affecting creditors’ rights generally and subject, as to enforceability, to the Knowledge general principles of Parent, each equity (regardless of the other parties thereto, subject to the Bankruptcy and Equity Exception. whether enforcement is sought in a proceeding at equity or law)).
(c) There are no conditions precedent side letters or other legally binding agreements, contracts or arrangements relating to the obligation to make funding or investing, as applicable, of the full amount of the Equity Financing or the Debt Financing available to Parent pursuant to on the Debt Commitment LetterClosing Date, other than as expressly set forth in the Equity Commitment Letter or the Debt Financing Commitment Letter, as applicable. Neither the Equity Financing nor the Debt Financing is subject to any conditions precedent other than those expressly set forth in the Equity Commitment Letter or the Debt Financing Commitment Letter, as applicable.
(d) Assuming the funding in full of the Financing on the Closing Date and the satisfaction of the conditions set forth in Section 6.01 clauses (d) and 6.02(e) of Annex I, the net proceeds of the Debt Financing willCommitments, when funded in accordance with the Financing Commitment Letters, will be, in the aggregate aggregate, sufficient for the satisfaction of Parent’s obligations under this Agreement, including under Article II, and together to consummate the transactions contemplated hereby and to pay all fees and expenses reasonably expected to be incurred in connection herewith and with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisionsCommitments.
(e) for the payment of the Required Amount. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in clauses (d) and (e) of Annex I, (i) to the knowledge of Parent, no event has occurred which, with which would constitute or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in default (or an event which with notice or lapse of time or both would constitute or would reasonably be expected to constitute a failure to satisfy a condition precedent, in each case, default) on the part of Parent or, any party to the Knowledge of ParentFinancing Commitment Letters, any other parties thereto under any term or condition of the Debt Financing Commitment LetterLetters, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any has no reason to believe that any of the conditions to the Financing Commitments will not be satisfied (or that the full amount of the Equity Financing and the full amount of the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent Parent) on or prior to the Closing DateOffer Closing. Parent has fully paid (or caused to be paid) any and all commitment fees or and other fees to the extent fees, costs and expenses that are required to be paid on or prior to the date of this Agreement pursuant to the Financing Commitment Letters or otherwise in connection with the Debt Financing Commitments.
(f) Notwithstanding anything to the contrary contained herein, the parties acknowledge and agree that it shall not be a condition to the obligations of Parent to consummate the transactions contemplated by this Agreement or any of its obligations under this Agreement that Parent continue to have access to the financing contemplated by the Financing Commitments (i.e., Parent’s obligations are not conditioned upon the availability of financing). The representations and warranties set forth in this Section 4.7, as they relate to the Equity Commitment Letter and the Equity Financing. Except for the Fee Letters and customary engagement letters , shall apply with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), Amended and Restated Agreement and are made as of the date hereof, there are no side letters or other agreements, contracts or arrangements Execution Date and as of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersOffer Expiration Time.
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Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ Buyer has delivered to the Company true, complete and correct copies of: (ai) a correct and complete fully the executed copy of the debt commitment letter, dated as of even date herewithSeptember 8, including all exhibits2010 between Buyer, schedulesDeutsche Bank AG New York Branch, annexes Deutsche Bank AG Cayman Islands Branch, Deutsche Bank Securities Inc., UBS Securities LLC and amendments UBS Loan Finance LLC, related term sheets and any “market flex” provisions applicable to such letter in effect as of the date of this Agreement commitments (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment LetterFinancing Commitment”) and (b) a copy of any fee letters related ), pursuant to the Debt Commitment Letter (the “Fee Letters” andwhich, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to upon the terms and subject solely to the conditions ofset forth therein, the Debt Commitment LetterDeutsche Bank AG New York Branch, the lender thereunder has committed Deutsche Bank AG Cayman Islands Branch, Deutsche Bank Securities Inc., UBS Securities LLC and UBS Loan Finance LLC have agreed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter purpose of funding the transactions contemplated by this Agreement (the “Debt Financing”); and (ii) the executed equity commitment letter, dated as of September 8, 2010 among Buyer and the Guarantors (the “Equity Financing Commitment” and together with the Debt Financing Commitment, the “Financing Commitments”), pursuant to which, upon the terms and subject to the conditions set forth therein, the Guarantors have committed to invest the cash amount set forth in its Equity Financing Commitment (the “Equity Financing” and together with the Debt Financing, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement, and, as of the date hereof, the respective commitments contained in the Financing Commitments have not been withdrawn, terminated or rescinded in any respect. As of the date hereof, neither there are no other agreements, side letters or arrangements to which Buyer, Intermediate or Merger Sub is a party relating to any of the Debt Commitment Letter nor any Fee Letter has been amended, restated Financing Commitments that could adversely affect the availability or otherwise modified or waived prior to the execution and delivery amount of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in gross proceeds of the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter)Financing. As of the date of this Agreementhereof, the Debt Commitment Letter is Financing Commitments are in full force and effect and constitutes constitute the legal, valid and binding obligation obligations of Parent each of Buyer (with respect to the Equity Financing Commitment), Buyer (with respect to the Debt Financing Commitment) and, to the Knowledge knowledge of ParentBuyer, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other Other than as expressly set forth in the Debt Commitment Letter. Assuming Financing Commitments, there are no conditions precedent related to the satisfaction funding of the conditions set forth in Section 6.01 and 6.02, the full net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “market flex” provisions) for under any agreement relating to the payment Financing to which Buyer or any of its Affiliates is a party that would, or would reasonably be expected to, (a) impair the validity of the Required AmountFinancing Commitments, (b) reduce the aggregate amount of the Financing or (c) materially delay or prevent the Closing. Assuming performance by the Company of its obligations under this Agreement and the accuracy of the representations and warranties of the Company set forth in this Agreement, upon receipt of the proceeds contemplated by the Financing Commitments, together with the available cash and cash equivalents of the Company and its Subsidiaries, Buyer, Intermediate and Merger Sub will have access at the Effective Time to sufficient cash funds to pay all amounts contemplated by this Agreement to be paid by them, to redeem or refinance any Funded Indebtedness that is to be redeemed or refinanced at Closing, and to perform their respective obligations hereunder. As of the date of this Agreementhereof, (i) no event has occurred which, which would constitute a breach or default (or with notice or without notice, lapse of time or both, both would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedentdefault) by Buyer under the Financing Commitments, in each case, on the part of Parent or, to the Knowledge knowledge of ParentBuyer, any the other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing DateCommitments. Parent Buyer has fully paid (or caused to be paid) fully paid all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect hereof pursuant to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersCommitments.
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Financing. At the Closing(a) Parent has, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect on or prior to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to entered into subscription agreements (the Company (a"Partnership Subscription Agreements") a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with hereof pursuant to which the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter subscribers thereunder (the “Fee Letters” and"Partnership Investors") have agreed, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution Partnership Subscription Agreements and delivery of this Agreement (in each case, no other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent andconditions, to the Knowledge provide an aggregate of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available $100 million to Parent pursuant to the Debt Commitment Letterin cash for partnership interests in Parent. Sub has, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date hereof, entered into one or more commitment letters (the "Preferred Stock Commitment Letters") dated the date hereof pursuant to which the proposed purchasers thereunder (the "Preferred Stock Investors"; and, together with the Partnership Investors, the "Equity Investors") have agreed, subject to the terms and conditions contained in the Preferred Stock Commitment Letters and no other conditions, to provide an aggregate of this Agreement up to $100 million of funds to Sub in cash for shares of preferred stock of Sub, which shares of preferred stock will contain terms substantially the same as those set forth on Exhibit A to the Preferred Stock Commitment Letters (as such terms may be amended in accordance with the terms of the Preferred Stock Commitment Letters and Section 6.14 hereof prior to the Effective Time). The financing to be provided to Parent and Sub pursuant to the Partnership Subscription Agreements and the Preferred Stock Commitment Letters is sometimes referred to herein as the "Equity Financing." Parent and Sub have, on or prior to the date hereof, entered into a commitment letter (the "Subordinated Debt Commitment Letter"), with CIBC World Markets Corp. and The Chase Manhattan Bank (the "Subordinated Lenders") pursuant to which the Subordinated Lenders have committed, subject to the conditions contained in the Subordinated Debt Commitment Letter and no other conditions, to provide an aggregate of up to $275 million to Sub in cash as a senior subordinated increasing rate bridge loan to Sub, which senior subordinated increasing rate bridge loan will contain terms substantially the same as those set forth on Exhibit A to the Subordinated Debt Commitment Letter (as such terms may be amended in accordance with the terms thereof and Section 6.14 hereof prior to the Effective Time) (the "Subordinated Debt Financing"). Sub has, on or prior to the date hereof, entered into a commitment letter (the "Senior Debt Commitment Letter"), and, together with the Partnership Subscription Agreements, the Preferred Stock Commitment Letters and the Subordinated Debt Commitment Letter (the "Consideration Commitment Letters"), with CIBC World Markets Corp., Canadian Imperial Bank of Commerce, The Chase Manhattan Bank and Chase Securities, Inc. pursuant to which the Canadian Imperial Bank of Commerce and The Chase Manhattan Bank (the "Senior Lenders") have committed, subject to the conditions contained in the Senior Debt Commitment Letter and no other conditions, to provide an aggregate of up to $165 million to Sub in cash as a senior secured credit facility to Sub, which senior secured credit facility will contain terms substantially the same as those set forth on Exhibit A to the Senior Debt Commitment Letter (as such terms may be amended in accordance with the terms thereof and Section 6.14 hereof prior to the Effective Time) (the "Senior Debt Financing"). The aggregate cash amount committed to be provided under the Consideration Commitment Letters is sufficient to pay the aggregate Merger Price per share and the aggregate Option Amounts and to make all other necessary payments of fees and expenses required to be paid by Parent and Sub in connection with the Debt Financingtransactions contemplated by this Agreement. Except for the Fee Letters and customary engagement letters with respect Sub has, on or prior to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are entered into a commitment letter (the "Backstop Commitment Letter" and, together with the Consideration Commitment Letters, the "Commitment Letters") with CIBC World Markets Corp., Canadian Imperial Bank of Commerce, The Chase Manhattan Bank and Chase Securities, Inc. pursuant to which Canadian Imperial Bank of Commerce and The Chase Manhattan Bank (the "Backstop Lenders") have committed, subject to the conditions contained in the Backstop Commitment Letter and no side letters other conditions, to provide up to $428 million in cash of senior debt financing to TNMP after the Effective Time to refinance certain outstanding indebtedness of TNMP and its Subsidiaries which may become due and payable as a result of the Merger, which senior debt financing will contain terms substantially the same as those set forth on Exhibit A of the Backstop Commitment Letter (as such terms may be amended in accordance with the terms thereof and Section 6.14 hereof prior to the Effective Time) (the "Backstop Financing" and, together with the Subordinated Debt Financing and the Senior Debt Financing, the "Debt Financing").
(b) ...Parent has previously provided the Company with true and complete copies of (i) each Commitment Letter entered into on or prior to the date hereof, (ii) the form of partnership agreement of the Parent, (iii) the form of articles of incorporation of Sub, (iv) the partnership agreement and all other agreementsorganization and formation documents of the general partner of the Parent (the "General Partner"), contracts (v) the limited liability company regulations and all other organization and formation documents of the general partner of the General Partner and (vi) the form of each other agreement to which Sub, Parent or arrangements the General Partner, on the one hand, and any Financing Party, an affiliate of a Financing Party or any kind other person, on the other hand, to be entered into on the date hereof and relating to the Debt Commitment Letter to which any equity interest of Sub, Parent or any of its Affiliates is a party, other than the General Partner (the documents and agreements referred to in clauses (ii) through (v) are referred to herein as expressly set forth in the Financing Letters"Equity Documents and Agreements").
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Financing. At Parent has provided to the ClosingCompany true, assuming accurate and complete copies, dated as of the funding date of this Agreement, of (a) the Equity Commitment Letter from the Investors to invest, subject to the terms and conditions therein, cash in the aggregate principal amount set forth therein to Parent (the “Equity Financing”) and (b) an executed commitment letter from the Debt Financing Sources party thereto, dated as of the date of this Agreement (including the exhibits, annexes and schedules thereto, the “Debt Commitment Letter” and, together with the Equity Commitment Letter, the “Financing Commitment Letters”) to provide, subject to the terms and conditions therein, debt financing in accordance the aggregate principal amount set forth therein as of the Closing Date (the “Debt Financing” and together with the Equity Financing, the “Financing”), pursuant to which (x) the Investors have, and (y) the Debt Financing Sources party to the Debt Commitment Letter have, committed to provide, subject only to the terms and after giving effect to any “flex” provision in conditions contained therein, the Debt Commitment Letter or Financing, which together with the related fee letters (including with respect to fees and original issue discount)Other Sources, Parent will have immediately available funds in an represents the full amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount Offer Price and Merger Consideration (the “Aggregate Consideration”), any other amounts required to be paid in connection with the consummation of the Merger Consideration, other amounts payable pursuant to Article II Transactions (including all amounts payable in respect of Company Stock Options, Company Restricted Shares pursuant to Section 3.04) and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Parent or Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection withwith the Transaction (such amount collectively, or as a result of, the consummation of the Transactions (the “Required Amount”). As Except for any fee letters or engagement letters (redacted solely with respect to fee amounts or other sensitive information that does not impact conditionality, enforceability, availability or the aggregate principal amount of the date hereof, ▇▇▇▇▇▇ has delivered Financing) that have been provided to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereofcollectively, the “Debt Commitment Fee Letter”) and (b) a copy of ), there are no other side letters, arrangements or understandings, whether written or oral, with any fee letters related person relating to the Debt Financing other than as expressly set forth in the Financing Commitment Letter (the “Fee Letters” and, together with the Debt . Each Financing Commitment Letter, in the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject form provided to the terms and conditions ofCompany, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent andParent, Merger Sub and (in the case of the Equity Commitment Letter) the applicable Investor, is in full force and effect, has not been withdrawn or terminated or otherwise amended, supplemented or modified in any respect as of the date hereof, and is enforceable in accordance with the terms thereof against Parent, Merger Sub and (in the case of the Equity Commitment Letter) the applicable Investor, and to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy effect of any applicable bankruptcy, insolvency (including all Laws relating to fraudulent transfers), reorganization, moratorium or similar Laws affecting creditors’ rights generally and Equity Exception. There are no conditions precedent subject to the obligation to make effect of general principles of equity (regardless of whether considered in a proceeding at Law or in equity). The Other Sources are available on the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 date hereof and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds will be available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses Sub at the Acceptance Time to enable Parent and similar premiums and charges payable Merger Sub to consummate the Transactions pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amountthis Agreement. As of the date hereof, assuming the accuracy of this Agreementthe Company’s representations and warranties set forth in Article IV, (i) no event has occurred which, with or without notice, lapse of time or both, (and no event is reasonably expected to occur) which would reasonably be expected to result in any breach of or constitute a default under (or an event which with notice or lapse of time or both would result in any breach of or constitute a default under) or reasonably be expected to result in a failure to satisfy a condition precedent, precedent or otherwise result in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition portion of the Debt Commitment Letter, and Financing necessary to fund the Required Amount (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing PeriodOther Sources) contemplated thereby to be unavailable or would reasonably be expected to permit any party to such Financing Commitment Letter to terminate, or to not make any portion of the funding necessary to fund the Required Amount (taking into account the Other Sources) under, such Financing Commitment Letter. Assuming the accuracy in all material respects of the Company’s representations and warranties set forth in Article VI, Parent does not have any reason to believe that any of the conditions to the Debt Financing necessary to fund the Required Amount (taking into account the Other Sources) will not be satisfied on or prior to the Closing Date or that the Debt full amount of the Financing or any other funds necessary to pay fund the Required Amount (taking into account the Other Sources) contemplated by the Financing Commitment Letters to be funded on the Closing Date will not be available to Parent on the Closing Date. Each Financing Commitment Letter has not been amended, supplemented, terminated, rescinded or modified (and no waiver of any provision thereof has been granted) and no such amendment, supplement, termination, rescission or modification is contemplated (other than, in the case of the Debt Commitment Letter, any amendment, supplement or modification to join additional arrangers, lenders or commitment parties or as permitted by Section 7.14(b)). Each Financing Commitment Letter (x) contains all of the conditions precedent to the obligations of the Investors and the Debt Financing Sources party thereto, as applicable, to make the applicable portion of the Required Amount (taking into account the Other Sources) available to Parent and Merger Sub on the terms set forth therein and (y) does not contain any contingencies that would permit the applicable Investor or Debt Financing Source party thereto, as applicable, to reduce, or rescind its obligation to provide, the total amount of the Financing. The obligations and commitments contained in the Financing Commitment Letters have not been withdrawn or rescinded in any respect. The Investors have not indicated that the Equity Financing will be unavailable. Each of Parent and Merger Sub, as applicable, has fully paid (paid, or caused to be paid) fully paid on, any and all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement hereof in connection with the Debt Financing. Except Parent and Merger Sub will have at the Closing funds sufficient for the Fee Letters payment of the Required Amount.
(a) The Equity Commitment Letter provides, and customary engagement letters will continue to provide, that the Company is an express third-party beneficiary of the Equity Commitment Letter and, subject to Section 10.08(b), the Company is (on its own behalf and on behalf of the Company’s stockholders) entitled to enforce, directly or indirectly, the Equity Commitment Letter in accordance with respect its terms against the applicable Investor.
(b) Parent and Merger Sub acknowledge and agree that it is not a condition to the Debt Financing (none of which reduces the amount Closing or to any of the Debt Financing below the Required Amount or adversely affects the conditionalityother obligations under this Agreement, enforceability, termination or availability of the Debt Financingsubject to Section 10.08(b)(iii), as of the date hereof, there are no side letters that Parent and Merger Sub obtain financing for or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersTransactions.
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Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by a) Parent, Merger Sub and the Surviving Corporation Guarantors have sufficient cash and marketable securities on hand or other sources of immediately available funds to enable them to pay the aggregate amount of consideration in the Offer, the aggregate Merger Consideration, other amounts payable the aggregate Company Stock Option payments pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this AgreementSection 6.10(a), any fees the aggregate Company RSU payments pursuant to Section 6.10(b), the aggregate Deferred Share Right payments pursuant to Section 6.10(c), the aggregate Company ESPP payments pursuant to Section 6.10(d) and the payment of all fees, costs and expenses of or payable to be paid by Parent, Merger Sub or the Surviving Corporation and any other related to the transactions contemplated by this Agreement (such amounts, including Indebtedness of the Company and its Subsidiariescollectively, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Payment Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) Parent has delivered to the Company a true, correct and complete copy of any (x) (1) the fully executed ABL Commitment Letter and (2) the executed fee letters related to letter referenced in the Debt ABL Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be it being understood and agreed that the Fee Letter has been redacted in a customary manner to remove omit the fee amounts, the economic provisions of the market flex provisions and other proprietary economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this typetherein) providing, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions oftherein, for debt financing in the Debt Commitment Letter, the lender thereunder has committed to lend the amounts aggregate amount set forth therein for the purposes set forth in such Debt the ABL Commitment Letter (the “ABL Financing”), (y) the executed Change of Control Offer Letter with respect to the obligation of the Company and ▇▇▇▇▇▇▇▇ Brands L.L.C. to offer to purchase the 7.875% senior secured notes due 2021 pursuant to the indenture relating thereto as a result of the transactions contemplated by this Agreement (such obligation, the “Debt Purchase”) and (z) the executed Equity Commitment Letters (together with the Debt Letters, the “Financing Commitments”), providing that, subject to the terms and conditions therein, the Guarantors have committed to contribute or caused to be contributed to Parent the amount of cash as described therein to be used by Parent to consummate the transactions contemplated by this Agreement (the “Equity Financing”). As At the Acceptance Time, Parent and Merger Sub will have sufficient cash on hand or other sources of immediately available funds to enable them to (i) pay the date hereof, neither Required Payment Amount and (ii) consummate the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of transactions contemplated by this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, Parent has no reason to believe that it or Merger Sub will be unable to satisfy any term or condition of closing to be satisfied by Parent or Merger Sub contained in the Debt Financing Commitments. As of the execution and delivery of this Agreement, the ABL Commitment Letter is and the Fee Letter are in full force and effect and constitutes constitute the legal, valid and binding obligation of each of Merger Sub and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Merger Sub and, to the Knowledge of Parent, each of the other parties thereto, except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any proceeding seeking enforcement may be brought. As of the execution and delivery of this Agreement, the Equity Commitment Letters and the Change of Control Offer Letter are in full force and effect and constitute the legal, valid and binding obligation of each of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to except as limited by Laws affecting the Bankruptcy and Equity Exception. There are no conditions precedent to enforcement of creditors’ rights generally, by general equitable principles or by the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount discretion of any “flex” provisions) for the payment of the Required AmountGovernmental Entity before which any proceeding seeking enforcement may be brought. As of the date of this Agreement, (i) none of Parent, Merger Sub or, to the Knowledge of Parent, any other counterparty thereto has committed any breach of any of its covenants or other obligations set forth therein, or is in default under, the Financing Commitments, and no event has occurred which, with or without notice, lapse of time or both, would, or would reasonably be expected to to, constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or Merger Sub under any term or condition of the Financing Commitments or, to the Knowledge of Parent, any other parties thereto under any term that would, or condition would reasonably be expected to, individually or in the aggregate, (A) permit the financial institutions party to the Debt Letters to terminate, or to not make the initial funding of the Debt Commitment Letterfacilities to be established thereunder upon satisfaction of all conditions thereto or (B) permit the Guarantors to terminate, and (ii) assuming or to not contribute or cause to be contributed to Parent the Equity Financing upon satisfaction or waiver of the all conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing PeriodEquity Commitment Letters. Except as set forth in the applicable Financing Commitment (including the “flex” provisions contained in the Fee Letter), Parent does not have there are no (i) conditions precedent to the respective obligations of the Financing Sources that are party to the ABL Commitment Letter to fund the full amount of the ABL Financing, (ii) conditions precedent to the obligations of Bank J. Safra ▇▇▇▇▇▇▇ ▇▇ to make the Debt Purchase in accordance with the terms of the Change of Control Offer Letter, (iii) contractual contingencies under any reason agreements, side letters or arrangements, whether written or oral, relating to believe that the ABL Financing or the Debt Purchase to which either Parent, Merger Sub or any of their respective Affiliates is a party including any that would, or would reasonably be expected to, (A) permit the conditions Financing Sources that are party to the Debt Financing will not be satisfied ABL Commitment Letter to reduce the total amount of the ABL Financing, or that would, or would reasonably be expected to, adversely affect the availability of the ABL Financing or otherwise result in the ABL Financing not being available on a timely basis or prevent or delay the consummation of the transactions contemplated hereby, or (B) permit Bank J. Safra ▇▇▇▇▇▇▇ ▇▇ to decline to make the Debt Financing Purchase or any other funds necessary comply with the terms of the Change of Control Offer Letter or (iv) conditions precedent to pay the Required Amount will not be available respective obligations of the Guarantors that are party to the Equity Commitment Letters to contribute or cause to contribute to Parent on the Closing Datefull Equity Financing. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to As of the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionalityAgreement, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersCommitments have not been amended, restated or otherwise modified and the respective commitments contained therein have not been withdrawn or rescinded in any respect.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Chiquita Brands International Inc)
Financing. At (a) The Parent and Merger Sub have delivered to the ClosingCompany, assuming prior to the funding time of execution of this Agreement, true, complete and correct copies of: (i) the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount)executed debt commitment letter, Parent will have immediately available funds in an amount dated as is necessary to consummate the Transactionsof April 14, including the payment by Parent2013, between Merger Sub and the Surviving Corporation of the aggregate amount of the Merger ConsiderationDeutsche Bank Trust Company Americas, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock OptionsDeutsche Bank AG Cayman Islands Branch, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereofDeutsche Bank Securities Inc., ▇▇▇▇▇▇ has delivered ▇▇▇▇▇▇▇ Senior Funding, Inc., UBS AG, Stamford Branch and UBS Securities LLC and the executed fee letter associated therewith (provided, that provisions in the fee letter related to the Company (a) a correct amount of fees and complete fully executed copy other economics, “flex” provisions and “securities demand” provisions, but only to the extent not affecting the amount, availability or conditionality of the debt Debt Financing, may be redacted) (such commitment letter and the fee letter, dated as of even date herewith, including together with all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereofsupplements thereto, collectively, the “Debt Commitment LetterFinancing Commitment”) ), pursuant to which, upon the terms and (b) a copy of any fee letters related subject to the Debt Commitment Letter conditions set forth therein, Deutsche Bank Trust Company Americas, Deutsche Bank AG Cayman Islands Branch, Deutsche Bank Securities Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., UBS AG, Stamford Branch and UBS Securities LLC have agreed to lend the amounts set forth therein (the “Fee LettersDebt Financing”) for the purpose of funding the transactions contemplated by this Agreement, the payment of fees and expenses to be incurred by Parent and Merger Sub in connection therewith and for the other purposes set forth therein; and (ii) the executed equity commitment letter, dated as of April 14, 2013, among the Parent and Madison Dearborn Capital Partners VI-A, L.P., Madison Dearborn Capital Partners VI-C, L.P. and Madison Dearborn Capital Partners VI Executive-A, L.P., each a Delaware limited partnership (collectively, the “Investors”) (together with all exhibits, schedules, annexes, supplements and amendments thereto, the “Equity Financing Commitment” and, together with the Debt Commitment LetterFinancing Commitment, the “Financing LettersCommitments”) (which may be redacted ), pursuant to remove the fee amountswhich, economic terms and upon the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions ofset forth therein, each of the Debt Commitment Letter, the lender thereunder Investors has committed to lend invest the amounts cash amount set forth therein for the purposes set forth in such Debt Commitment Letter (the “Equity Financing” and, together with the Debt Financing, the “Financing”). As None of the date hereof, neither the Debt Commitment Letter nor any Fee Letter Financing Commitments has been amended, restated or otherwise modified or waived prior to the execution and delivery date of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each caseand, other than amendments, restatements, or modifications solely to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents and similar entities, no such amendment, restatement, modification or other similar entities in a manner waiver is contemplated by the Debt Commitment Letter). As as of the date of this Agreement, and the Debt Commitment Letter is respective commitments contained in the Financing Commitments have not been withdrawn, terminated or rescinded in any respect on or prior to the date of this Agreement. As of the date hereof, there are, and are contemplated to be, no other agreements, side letters or arrangements relating to any of the Financing Commitments (other than as expressly set forth in the Financing Commitments delivered to the Company pursuant to the first sentence of this Section 4.4(a) and other than customary engagement letters, customary side letters and other customary ancillary agreements, none of which affect the amount, availability or conditionality of the Financing). As of the date hereof, the Financing Commitments are in full force and effect and constitutes constitute the legal, valid and binding obligation obligations of each of the Parent and Merger Sub and, to the Knowledge knowledge of the Parent, each of the other parties thereto, enforceable in each case in accordance with its their terms against Parent andand except as limited by (x) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar Laws relating to the Knowledge creditors’ rights generally and (y) general principles of Parentequity, each of the other parties thereto, subject to the Bankruptcy and Equity Exceptionwhether such enforceability is considered in a proceeding in equity or at Law. There are no conditions precedent related to the obligation to make funding of the Debt full amount of the Financing available to Parent pursuant to the Debt Commitment Letter(including any “flex” provisions), other than as expressly set forth in the Debt Commitment LetterFinancing Commitments furnished to the Company pursuant to the first sentence of this Section 4.4(a). Assuming the satisfaction As of the conditions set forth in Section 6.01 and 6.02date hereof, to the net proceeds knowledge of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient no event has occurred that would result in any breach or violation of or constitute a default (after netting out or an event which with notice or lapse of time or both would become a default) by the Parent or Merger Sub under any fees, original issue discount, expenses and similar premiums and charges payable pursuant to of the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required AmountCommitments. As of the date of this Agreementhereof, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on neither the part of Parent or, to the Knowledge of Parent, nor Merger Sub nor any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have Investors has any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to the Parent or Merger Sub on the Closing Date. The Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date hereof pursuant to the Financing Commitments.
(b) Assuming the satisfaction of this the conditions set forth in Section 6.1 and Section 6.2(b), and subject to the “Specified Representations” and the “Specified Merger Agreement Representations” (each such term as defined in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing Commitment) being true and correct in all material respects (none of except to the extent any such “Specified Representation” or “Specified Merger Agreement Representation” is already qualified by materiality, in which reduces the amount of the Debt Financing below the Required Amount case such “Specified Representation” or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), “Specified Merger Agreement Representation” shall be true and correct in all respects) as of the date hereof, there are no side letters or other agreements, contracts or arrangements Closing as if made as of any kind relating the Closing (except to the Debt Commitment Letter extent any such “Specified Representation” or “Specified Merger Agreement Representation” speaks as of another time, in which case such “Specified Representation” or “Specified Merger Agreement Representation” shall be true and correct as of such other time), the aggregate proceeds to which be disbursed pursuant to the agreements contemplated by the Financing Commitments, together with the cash and cash equivalents of the Company and its Subsidiaries available to the Company and its Subsidiaries on the Closing Date, will be sufficient on the Closing Date for the Parent or and the Surviving Corporation to pay the aggregate Merger Consideration, the aggregate Closing Equity Incentive Amounts and all related fees and expenses and any of its Affiliates is a party, other than as expressly set forth payment contemplated in this Agreement and in the Financing LettersCommitments.
(c) The obligations of the Parent and Merger Sub under this Agreement are not subject to any conditions regarding the availability or receipt of financing (including the Financing) for the consummation of the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (National Financial Partners Corp)
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision Acquisition (or WCAS VIII in the Debt Commitment Letter or the related fee letters case of clause (including with respect to fees i) --------- below) has received and original issue discount)executed commitment letters, Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, each dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter hereof (the “Fee Letters” and"COMMITMENT LETTERS"), together with the Debt Commitment Letterfrom (i) Chase Securities Inc. and Chase Bank of Texas, the “Financing Letters”) N.A. (collectively, "CHASE"), pursuant to which may be redacted to remove the fee amountsChase has committed, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions ofset forth therein, to provide the Debt Commitment LetterSurviving Corporation with up to $120.0 million of financing under available senior secured credit facilities; (ii) WCAS VIII, pursuant to which it has committed, subject to the lender thereunder terms and conditions set forth therein, to provide to Acquisition up to $145.0 million in equity; and (iii) WCAS Capital Partners III, L.P. or an affiliate thereof, pursuant to which it has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter provide up to $160.0 million of senior subordinated financing (the “Debt Financing”financings referred to in clauses (i), (ii) and (iii) above being collectively referred to as the "FINANCING"). As Such Financing is adequate to pay in full in cash at closing the Merger Consideration, together with all fees and expenses of Acquisition and the Surviving Corporation associated with the transactions contemplated hereby, and to make any other payments necessary to consummate the transactions contemplated hereby. True and complete copies of the Commitment Letters have been furnished to the Company. WCAS VIII or Acquisition has fully paid any and all commitment fees or other fees required by such Commitment Letters to be paid as of the date hereof (and will duly pay any such fees after the date hereof); provided that, neither -------- if the Debt Commitment Letter nor any Fee Letter has been amendedMerger is consummated, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement Surviving Corporation will reimburse WCAS VIII for such commitment fees or other modification is contemplated fees required by such Commitment Letters. The Commitment Letters are valid and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, which (with or without notice, lapse of time or both, ) would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, thereunder on the part of Parent orAcquisition, to WCAS VIII or their affiliates or would adversely affect the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe probability that any of the conditions to the Debt such Financing will not actually be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Lettersfunded.
Appears in 1 contract
Sources: Merger Agreement (Banctec Inc)
Financing. At the Closing, assuming the funding Parent’s and Merger Sub’s obligations hereunder are not subject to a condition regarding Parent’s or Merger Sub’s obtaining of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”)transactions contemplated hereby. As of the date hereof, ▇▇▇▇▇▇ Parent has delivered to the Company true, correct and complete copies of (a) a correct and complete fully executed copy the equity commitment letter addressed to Parent, dated as of the debt date hereof (the “Equity Commitment Letter”), from the Sponsor to provide equity financing to Parent in the amount set forth therein (the “Equity Financing”), (b) the commitment letter, dated as of even the date herewithhereof, among Parent and the Debt Financing Sources party thereto (the “Debt Commitment Letter”) and (c) the fee letter, dated as of the date hereof, among Parent and the Debt Financing Sources party thereto (redacted only to remove the fee amounts, pricing caps, the rates and amounts included in the “market flex” and related to “securities demand” provisions contained therein and certain other economic terms, none of which redacted provisions cover terms that would or could adversely affect conditionality, enforceability or availability of, or the aggregate amount available under the Debt Financing), in each case, including all exhibits, schedules, annexes and amendments to such letter letters in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together along with the Debt Commitment Letter, the “Financing Debt Letters”) (), pursuant to which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions ofthereof, the Debt Commitment Letter, the lender thereunder has Financing Parties party thereto have severally committed to lend on or prior to the Closing Date the amounts set forth therein to Parent (the provision of such funds as set forth therein, but subject to the provisions of Section 7.3, the “Debt Financing”) for the purposes set forth in such Debt Commitment Letter (Letter. The Company is an express third-party beneficiary of the “Debt Financing”)Equity Commitment Letter. As of the date hereofexecution and delivery of this Agreement, neither the Debt Equity Commitment Letter nor any Fee Letter has the Debt Letters have been amended, restated or otherwise modified or waived prior to the execution in any respect (and delivery of this Agreement, no amendment, restatement restatement, modification or other modification waiver is contemplated (other than amendments or modifications to the Debt Letters solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Letters as of the date hereof)) and the respective commitments contained in the Equity Commitment Letter and Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior (and, to the Knowledge of Parent, no such withdrawal, rescission, amendment, restatement or modification is contemplated). As of the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Equity Commitment Letter is and the Debt Letters are in full force and effect and constitutes constitute the legal, valid valid, enforceable and binding obligation obligations of each of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject in each case to the Bankruptcy and Equity ExceptionEnforceability Exceptions. There are no conditions precedent or contingencies related to the obligation funding of the full amount of the Equity Financing pursuant to make the Equity Commitment Letter or the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in such letter. Subject to the terms and conditions of the Equity Commitment Letter and the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the aggregate net proceeds of contemplated from the Equity Financing and the Debt Financing Financing, together with other financial resources of Parent, including contemplated cash on hand of Parent, will, in the aggregate and together with any cash or other funds available to Parent aggregate, be sufficient for the satisfaction of all of Parent’s and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters’s obligations under this Agreement, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required AmountMerger Consideration and all fees and expenses reasonably expected to be incurred in connection therewith. As of the date of this Agreement, (i) assuming the satisfaction of the conditions to the Merger set forth in Section 8.1 and Section 8.2, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, default on the part of Parent under the Equity Commitment Letter or the Debt Commitment Letter or, to the Knowledge of Parent, any other parties thereto under any term party to the Equity Commitment Letter or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver . As of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Perioddate of this Agreement, there are no side letters or other Contracts to which Parent does not have any reason to believe that or Merger Sub or any of their Affiliates is a party related to the funding, investing, availability or conditionality, as applicable, of the Financing that would impose any new conditions or expand the existing conditions to the Debt Equity Financing will not be satisfied or that the Debt Financing or that would otherwise adversely affect the funding of all or any part of the Equity Financing and the Debt Financing other funds necessary to pay than as expressly set forth in the Required Amount will not be available to Parent on Equity Commitment Letter or the Closing DateDebt Commitment Letter. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters Equity Financing and customary engagement letters with respect to the Debt Financing (none and satisfied all of which reduces the amount other terms and conditions required to be satisfied by Parent on or prior to the date hereof. As of the date of this Agreement, assuming the satisfaction of the conditions to the Merger set forth in Section 8.1 and Section 8.2, Parent has no reason to believe that any of the conditions to the Equity Financing or the Debt Financing below the Required Amount or adversely affects the conditionalitywill not be satisfied, enforceability, termination or availability of the Debt Financing)nor does Parent have Knowledge, as of the date hereofof this Agreement, there are no side letters that the full amount of the Equity Financing or other agreements, contracts or arrangements the Debt Financing will not be made available to Parent as of any kind relating the time at which the Closing is required to occur pursuant to Section 2.2 in accordance with the terms of the Equity Commitment Letter and the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersLetter.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Covanta Holding Corp)
Financing. At Parent has delivered to the ClosingCompany true, assuming complete and accurate fully executed copies of (a) a debt commitment letter (including any amendments thereto to add lenders, arrangers, bookrunners, syndication agents or similar entities that have not executed such letter as of the date hereof, the “Debt Commitment Letter”), among the lenders party thereto (the “Lenders”) and Parent, (b) the related fee letter (the “Fee Letter,” and together with the Debt Commitment Letter, the “Debt Letters”) redacted in a customary manner solely with respect to all fees, syndication hold levels and all flex items, which redacted information does not adversely affect the amount, availability or conditionality of the funding of the Debt Financing Financing, in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewitheach case, including all exhibits, schedules, annexes and amendments to such letter letters in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related pursuant to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions ofthereof, the Debt Commitment Letter, the lender thereunder has Lenders have committed to lend the amounts set forth therein (the provision of such funds as set forth therein, the “Debt Financing”) for the purposes set forth in such Debt Commitment Letter and (c) the Equity Commitment Letter (together with the Debt Letters, the “Commitment Letters”), between the Guarantors and Parent, pursuant to which the Guarantors have committed to invest the amounts set forth therein in connection with the transactions contemplated herein (the “Equity Financing” and together with the Debt Financing, the “Financing”). As of the date hereof, neither the Debt The Equity Commitment Letter nor any Fee Letter has provides that the Company is an express third-party beneficiary thereof and Parent and the Guarantors will not oppose the granting of an injunction, specific performance or other equitable relief in connection with the exercise of such third-party beneficiary rights, in each case subject to the terms and conditions set forth in the Equity Commitment Letter. Except as permitted under Section 7.14(a), the Commitment Letters (i) have not been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter Letters have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement and (in each caseii) to the Knowledge of Parent, no such withdrawal, rescission, amendment, restatement, modification or waiver is contemplated (other than any such amendment, modification, or restatement to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by who have not executed the Debt Commitment LetterLetters as of the date hereof). As of the date of this Agreement, the Debt Commitment Letter is Letters are in full force and effect and constitutes constitute the legal, valid and binding obligation of each of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject in each case to the Bankruptcy bankruptcy laws and Equity Exceptionsimilar laws affecting creditors’ rights and general principles of equity. There are no conditions precedent or contingencies to the obligation to make funding of the Debt Financing available to Parent pursuant to the Debt Commitment LetterLetters, other than as expressly set forth in the Debt Commitment LetterLetters. Assuming At the satisfaction Closing and assuming the full funding of the conditions set forth in Section 6.01 and 6.02Financing, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub will have sufficient funds to pay all of Parent’s and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters’s obligations under this Agreement, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amountaggregate Merger Consideration and all fees and expenses required to be paid in connection therewith. As To the Knowledge of Parent, as of the date of this Agreement, (i) no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, default on the part of Parent orunder the Commitment Letters or otherwise result in any portion of the Financing to be unavailable. As of the date of this Agreement, to there are no side letters or other agreements or Contracts that could affect the Knowledge of Parent, any other parties thereto under any term or condition availability of the Debt Commitment Letter, and (ii) assuming Financing on the satisfaction or waiver of the conditions Closing Date other than as expressly set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing DateCommitment Letters. Parent has fully paid (or caused to be paid) in full any and all commitment fees or and other fees to the extent required to be paid on or prior to the date hereof under the terms of this Agreement in connection with the Debt Financing. Except for the Fee Commitment Letters and customary engagement letters with respect will pay all other commitment fees and other fees as required to be paid as a condition to funding the Financing under the terms of the Commitment Letters on or prior to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as Closing. As of the date hereofof this Agreement, there are no side letters Parent (A) is not aware of any fact, event or other agreements, contracts occurrence that makes any of the representations or arrangements warranties of Parent in any kind relating of the Commitment Letters that constitutes a condition precedent to the Debt Commitment Letter to which Parent or funding of the Financing on the Closing Date inaccurate in any material respect and (B) assuming the accuracy of its Affiliates is a party, other than as expressly Company’s representations and warranties set forth in this Agreement and performance by Company of its obligations hereunder, has no reason to believe that, subject to the satisfaction of the conditions precedent set forth in Sections 8.1, 8.2 and 8.3, any of the conditions to the Financing Letterscontemplated by the Commitment Letters will not be satisfied on a timely basis or that the Financing contemplated by the Commitment Letters will not be made available on the Closing Date. Notwithstanding anything to the contrary contained herein, a breach of this representation and warranty shall not result in the failure of a condition precedent to the Company’s obligations under this Agreement, if (notwithstanding such breach) Parent and Merger Sub are willing and able to consummate the Merger on the Closing Date.
Appears in 1 contract
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct Purchaser shall be entitled to encumber the Hotels or any of them with one or more Authorized Mortgages which are expressly subordinate to this Agreement or in connection with which the following terms and complete fully executed copy conditions are satisfied:
(i) the loan or other debt secured by such Authorized Mortgage shall not be cross-collateralized with other property or hotels which are not managed or franchised by Manager, IHG or their respective Affiliates;
(ii) the principal amount secured by such Authorized Mortgage shall not exceed the sum of seventy five percent (75%) (or, if less than four (4) Pooled FF&E Hotels secure such principal amount, sixty five percent (65%)) of the debt commitment letter, dated as sum of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect the fair market value as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, granting of such Authorized Mortgage of the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms Pledged Hotels and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in other properties securing such Debt Commitment Letter principal amount;
(the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As iii) as of the date of this Agreementthe granting of such Authorized Mortgage, the Debt Commitment Letter Service Coverage Ratio associated with such loan or debt secured thereby shall not be less than (i) 1.4 if fewer than four (4) Pooled FF&E Hotels secure such loan or other debt or (ii) 1.3 if four (4) or more Pooled FF&E Hotels secure such loan or other debt; and
(iv) the holder of such Authorized Mortgage shall execute and deliver to Manager (Manager agreeing to likewise execute and deliver to such holder) a so-called subordination, non-disturbance and attornment agreement which shall provide that:
(A) this Agreement and Manager's rights hereunder are subject and subordinate to the Authorized Mortgage, the lien thereof, the rights of the holder thereof and to any and all advances made thereunder, interest thereon or costs incurred in connection therewith;
(B) so long as this Agreement is in full force and effect and constitutes the legalthere exists no Manager Default which has not been cured within any applicable notice or grace period, valid and binding obligation Manager's rights under this Agreement shall not be disturbed by reason of Parent and, such subordination or by reason of foreclosure of such Authorized Mortgage or receipt of deed in lieu of foreclosure;
(C) Manager shall attorn to the Knowledge holder or the purchaser at any such foreclosure or the grantee of Parentany such deed (each, each a "Successor Purchaser");
(D) in the event of such attornment, the terms of this Agreement binding on Purchaser and Manager shall continue in full force and effect as a direct agreement between such Successor Purchaser and Manager, upon all the terms, conditions and covenants set forth herein, except that the Successor Purchaser shall not be (1) bound by any payment of Owner's Fixed Priority, Owner's Percentage Priority or the Residual Distribution in advance of when due; (2) bound by any amendment or modification of this Agreement made after the date that Manager first had written notice of such Authorized Mortgage without the consent of the other parties theretoholder thereof; (3) liable in any way to Manager for any act or omission, enforceable in accordance with its terms against Parent and, neglect or default on the part of Purchaser or Owner under this Agreement; (4) obligated to perform any work or improvements to be done by Purchaser or Owner or to make any advances except for those advances to be made pursuant to SECTION 5.2(c) from and after the Knowledge of Parent, each of date on which such Successor Purchaser acquired the other parties thereto, Hotel(s); or (5) subject to any counterclaim or setoff which theretofore accrued to Manager against Purchaser or Owner;
(E) In the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth event of a casualty or condemnation affecting any Pledged Hotel which does not result in the Debt Commitment Letter. Assuming the satisfaction termination of the conditions set forth in Section 6.01 and 6.02this Agreement with respect to such Pledged Hotel, the net insurance proceeds or Award shall be applied to the restoration of such Hotel as herein provided; and
(F) Such other terms as are customary for similar agreements.
(b) In the event less than all of the Debt Financing willHotels are to secure the loan or other debt secured by an Authorized Mortgage, Owner shall have the right to cause the Pledged Hotels to be managed pursuant to a separate management agreement which agreement shall be for a term equal to the unexpired portion of the Term and otherwise on substantially the same terms of this Agreement except as otherwise provided herein, provided that the Pledged Hotels in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to remaining Hotels in the maximum amount of any “flex” provisions) aggregate shall have Priority Coverage Ratios for the payment 12-month period ending on the last day of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or month next prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect on which such Authorized Mortgage is granted equal to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount each other or adversely affects the conditionalityequal to, enforceabilityor greater than, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Letters1.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hospitality Properties Trust)
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate a) The amount of the Merger Consideration, other amounts payable funds contemplated to be provided pursuant to Article II the Financing Commitments will be sufficient to (including i) pay the Purchase Price, (ii) pay any and all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid by Purchaser in connection withwith the transactions contemplated by this Agreement, or as a result ofincluding the Purchaser Financing, the consummation and (iii) satisfy all of the Transactions its other payment obligations contemplated hereunder.
(b) Purchaser has delivered to Seller an accurate and complete copy of (i) an executed commitment letter from Guarantors (the “Required AmountEquity Financing Commitment”). As of , pursuant to which Guarantors have committed, subject to the terms thereof, to invest the cash amount set forth therein (the “Equity Financing”) and which expressly provides that Seller shall be a third party beneficiary thereto (on terms therein) and (ii) (A) the executed senior commitment letter dated on or before the date hereof, ▇▇▇▇▇▇ has delivered among Purchaser and Korea Exchange Bank, Kookmin Bank, Industrial Bank of Korea and Korea Investment & Securities as Mandated Lead Arrangers and Underwriters and Korea Exchange Bank as Facility Agent and Security Agent, (B) the executed senior CP satisfaction letter dated on or before the date hereof, among Purchaser and Korea Exchange Bank, Kookmin Bank, Industrial Bank of Korea and Korea Investment & Securities as Mandated Lead Arrangers and Underwriters and (C) the mezzanine commitment letter dated on or before the date hereof, among Purchaser, UBS AG Hong Kong Branch as Mandated Lead Arranger and UBS AG, Singapore Branch as Underwriter, and excerpts of those portions of each executed fee letter and engagement letter associated therewith that contain any conditions to funding or other provisions (excluding provisions related solely to fees and economic terms (other than covenants) agreed by the Company (aparties) a correct regarding the terms and complete fully executed copy conditions of the debt financing to be provided by such commitment letters and satisfaction letter (such commitment letters and satisfaction letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to thereto and each such fee letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereofand engagement letter, collectively, the “Debt Commitment LetterFinancing Commitments” and such Debt Financing Commitments, together with the Equity Financing Commitment, the “Financing Commitments”) and (b) a copy of any fee letters related ), pursuant to which the lenders party thereto have committed, subject to the Debt Commitment Letter terms thereof, to lend the debt amounts set forth therein (the “Fee LettersDebt Financing” and, together with the Debt Commitment LetterEquity Financing, the “Purchaser Financing”).
(c) The Financing Letters”Commitments are (i) legal, valid and binding obligations of Purchaser and Guarantors, as applicable, and, to the Knowledge of Purchaser, each of the other parties thereto and (which ii) enforceable in accordance with their respective terms against Purchaser and/or any Guarantor, as applicable, and to the Knowledge of Purchaser each of the other parties thereto except as enforceability may be redacted limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies (regardless of whether enforcement is sought in a proceeding at law or in equity). Prior to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this typedate hereof, none of which redactions covers terms the Financing Commitments has been amended or modified except for such written amendments or modifications that reduce the amount have been provided to Seller, and as of the Debt date hereof the respective obligations and commitments contained in the Financing below the Required Amount Commitments have not been withdrawn or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth rescinded in such Debt Commitment Letter (the “Debt Financing”)any respect. As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution Financing Commitments are in full force and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter)effect. As of the date of this Agreementhereof, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent orPurchaser or any Guarantor, to the Knowledge of Parentas applicable, or any other parties thereto under any term or condition the Financing Commitments. As of the Debt Commitment Letterdate hereof, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any Purchaser has no reason to believe that any of the conditions to the Debt Purchaser Financing contemplated in the Financing Commitments will not be satisfied or that the Debt Purchaser Financing or any other funds necessary to pay the Required Amount will not be made available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid Purchaser on or prior to the date of this Agreement in connection with the Debt FinancingClosing Date. Except for the Fee Letters and customary engagement fee letters with respect to fees and related arrangements (in each case, that do not relate to the Debt Financing (none of which reduces conditionality of, or contain any conditions precedent to, the amount funding of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of financing contemplated by the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating related to the Debt Commitment Letter funding or investing, as applicable, of the full amount of the Purchaser Financing other than as expressly set forth in the Financing Commitments and delivered to which Parent Seller prior to the date hereof (except for the definitive agreements to be entered into in respect of the Financing Commitments), and there are no conditions precedent or any other contingencies related to the funding of its Affiliates is a partythe full amount of the Purchaser Financing, other than as expressly set forth in the Financing LettersCommitments and delivered to Seller prior to the date hereof. Purchaser has fully paid, or caused to be fully paid, any and all commitment or other fees which are due and payable on or prior to the date hereof pursuant to the terms of the Financing Commitments. Purchaser is unaware of any fact or occurrence existing on the date hereof that would reasonably be expected to make any of the assumptions or any of the statements set forth in the Financing Commitments inaccurate or that would reasonably be expected to cause the Financing Commitments to be ineffective.
Appears in 1 contract
Financing. At (a) Assuming the Closing, assuming the funding satisfaction of the Debt conditions to Parent’s obligation to consummate the Merger, the accuracy in all material respects of the representations and warranties of the Company in this Agreement as of the Closing Date and compliance by the Company in all material respects with the covenants contained in this Agreement, the amount of funds to be provided pursuant to the Financing Letters, if funded in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation terms of the aggregate amount of Financing Letters, together with the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares cash and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness cash equivalents of the Company and its Subsidiaries, will be sufficient at the Effective Time to (i) pay the Purchase Price and the amounts payable pursuant to Section 2.11 and any other repayment or refinancing of indebtedness required by the Financing Letters or required as a result of the consummation of the Merger, and (ii) pay any and all fees and expenses, and satisfy all other payment obligations, required to be paid or satisfied by Parent, Merger Sub and, to the extent disclosed to Parent and Merger Sub prior to the date hereof, the Surviving Entity in connection withwith the Merger and the Financing.
(b) Parent has delivered to the Company a true, or complete and correct copy of (i) the executed commitment letter, dated as a result of, the consummation of the Transactions date hereof (the “Required AmountEquity Financing Letter”), between Parent and Guarantors, pursuant to which each Guarantor has committed, subject to the terms and conditions thereof, to invest in Parent the cash amounts set forth therein (the “Equity Financing”), and (ii) the executed commitment letter, dated as of the date hereof, among Parent, Merger Sub, JPMorgan Chase Bank, N.A. and ▇.▇. ▇▇▇▇▇▇ Securities Inc., Credit Suisse AG and Credit Suisse Securities (USA) LLC (the “Debt Commitment Letter”, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the counterparties thereto have committed, subject to the terms and conditions thereof, to lend the amount set forth therein (the “Debt Financing” and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter (any such fee letter, a “Fee Letter”) in connection with the Debt Commitment Letter (it being understood that any such Fee Letter provided to the Company may be redacted to omit the numerical fee amounts provided therein).
(c) As of the date hereof, the Financing Letters are in full force and effect. There are no conditions precedent, or other contractual contingencies as between Parent and any other party to the Financing Letters, related to the funding of the full amount of the Financing, other than as set forth in the Financing Letters and any related Fee Letter. As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or Merger Sub or, to the Knowledge knowledge of Parent, . any of the other parties thereto thereto, under any term or condition the Financing Letters. As of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Perioddate hereof, Parent does not have any has no reason to believe that any of the conditions to the Debt Financing contemplated in the Financing Letters and any related Fee Letter will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be made available to Parent on and Merger Sub at or prior to the Closing Datetime contemplated hereunder for Closing. There are no side letters or other contracts or arrangements related to the Financing other than the Financing Letters and any related Fee Letter. As of the date hereof, Parent has and Merger Sub have fully paid (paid, or caused to be fully paid) , any and all commitment fees or other fees to the extent required to be paid which are due and payable on or prior to the date hereof pursuant to the terms of this Agreement in connection with the Debt Financing. Except for the Fee Financing Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Lettersrelated Fee Letter.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Logan's Roadhouse of Kansas, Inc.)
Financing. At (a) Purchaser (i) has, as of the ClosingExecution Date, assuming sufficient cash on hand to enable Purchaser to fund the funding Deposit on the Execution Date and (ii) will have as of the Closing Date sufficient cash, available lines of credit or other sources of immediately available funds (in Dollars) (which may include, for the avoidance of doubt, proceeds of the Debt Financing in accordance with Financing, any Alternative Financing, the Debt Commitment Letter and after giving effect to any “flex” provision Notes (as defined in the Debt Commitment Letter or Letter) and Other Sources) for the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation satisfaction of the aggregate amount all of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs Purchaser’s obligations under this Agreement), any including (A) paying the Closing Payment at Closing, (B) effecting the repayment of the Indebtedness to be repaid pursuant to the Payoff Letters in connection with the Closing and (C) paying all fees and expenses of or payable by ParentPurchaser and its Affiliates (and to the extent Purchaser is responsible therefor under this Agreement, Merger Sub or the Surviving Corporation and any other amountsPerson) related to the transactions contemplated by this Agreement, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result ofDebt Financing (collectively, the consummation of the Transactions (the “Required AmountFunding Requirements”). .
(b) As of the date hereofExecution Date, ▇▇▇▇▇▇ Purchaser has received and delivered to the Company Sellers (ax) a correct an executed senior 364-day unsecured bridge term loan facility commitment letter and complete fully (7) an executed copy of the debt amendment and increase commitment letterletter in connection with Purchaser’s existing reserve-based credit facility, each dated as of even the date herewith, hereof (including all exhibits, schedulesschedules and annexes thereto and each fee letter executed in connection therewith, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereofcollectively, the “Debt Commitment Letter”) and (b) a copy of any fee letters related pursuant to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionalitySources party thereto have committed, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions ofset forth therein, to provide to Purchaser the Debt Commitment Letter, the lender thereunder has committed to lend the amounts amount of debt financing set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”)) solely for the Funding Requirements. As of the date hereof, neither Purchaser has fully paid any and all commitment fees or other fees required by the Debt Commitment Letter nor any Fee to be paid on or before the date hereof. The Debt Commitment Letter is a legal, valid and binding obligation of Purchaser, and to the knowledge of Purchaser, each other party thereto, and is in full force and effect, enforceable against Purchaser and, to the knowledge of Purchaser, the other parties thereto, and has not been amended, restated modified, withdrawn, terminated or otherwise modified rescinded in any respect, and does not contain any material misrepresentation by Purchaser and no event has occurred which (with or waived prior without notice, lapse of time or both) would reasonably be expected to constitute a breach thereunder on the part of Purchaser. No amendment or modification to, or withdrawal, termination or rescission of, the Debt Commitment Letter is currently contemplated by Purchaser or any of its Affiliates or, to the execution and delivery knowledge of this AgreementPurchaser, no amendmentany Debt Financing Source, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated withdrawn or otherwise modified rescinded in any respect prior respect. Purchaser has not incurred any obligation, commitment, restriction or liability of any kind, and is not contemplating or aware of any obligation, commitment, restriction or liability of any kind, in either case which would reasonably be expected to the execution and delivery of this Agreement (impair or adversely affect such resources. Except for each fee letter referred to in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force (collectively, the “Fee Letter”) (a true and effect and constitutes the legal, valid and binding obligation complete copy of Parent and, which Fee Letter has been provided to the Knowledge Sellers); provided, that provisions contained in the Fee Letter relating to fees and economic terms (including economic “flex” terms) may be redacted in customary fashion (it being understood that Purchaser hereby acknowledges and agrees that none of Parentwhich redacted provisions would adversely affect the availability of, each impose additional or new conditions, or expand or modify any existing conditions, or impair the validity of, or prevent or materially delay the consummation of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available at the Closing), there are no side letters or other agreements to Parent pursuant which Purchaser is party related to the funding of the Debt Commitment Letter, Financing other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable Letter pursuant to this Section 5.9 that would impose any new conditions or expand the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the existing conditions to the Debt Financing will not be satisfied Sources’ provision of the Debt Financing at the Closing or that would otherwise materially and adversely affect the availability of the Debt Financing at the Closing. Neither the Fee Letter nor any other agreement between the Debt Financing Sources, on the one hand, and Purchaser or any of its Affiliates, on the other hand, contains any conditions precedent (other than the “Limited Conditionality Provisions” expressly set forth and defined in the Debt Commitment Letter as in effect on the date hereof) or other contingencies (i) related to the funding of the full amount of the Debt Financing or any other funds provisions that could reduce the proceeds contemplated by the Debt Commitment Letter below the amount necessary for Purchaser to pay consummate the Required Amount will not be available to Parent transactions contemplated by this Agreement on the Closing Date. Parent has fully paid Date or (or caused to be paidii) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or that could otherwise adversely affects affect the conditionality, enforceability, termination enforceability or availability of the Debt Financing), as Commitment Letter with respect to all or any portion of the date hereofDebt Financing.
(c) Purchaser has, there are no side letters or other agreementsand at Closing shall have, contracts or arrangements sufficient duly authorized but unissued shares of any kind relating Purchaser Common Equity to enable it to (i) issue the portion of the Equity Purchase Price as determined pursuant to Section 2.6 on the Closing Date, (ii) to the Debt Commitment Letter to which Parent or any of its Affiliates is a partyextent applicable, other than as expressly set forth in issue the Financing LettersDefect Escrow on the Closing Date and (iii) issue the aggregate Applicable Holdback Amount on the Closing Date.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Civitas Resources, Inc.)
Financing. At (a) Parent has received and accepted, and delivered to the Closing, assuming Company a complete and correct copy of a fully executed equity commitment letter (the funding “Equity Commitment Letter”) from each of the Debt parties listed on Annex I hereto (the “Financing in accordance Sources”) confirming the Financing Sources’ commitments to provide Parent with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds equity financing in an amount as is necessary up to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid set forth therein in connection with, or as a result of, the consummation of with the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As Assuming that (i) the Financing contemplated by the Equity Commitment Letter is fully funded on the terms set forth therein and (ii) the satisfaction of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution conditions set forth in Section 6.1 and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement Section 6.2 (in each case, other than those conditions that by their terms are to add lendersbe satisfied at the Closing, financial institutionsbut subject to the satisfaction or waiver (to the extent permitted by applicable Law) of such conditions at the Closing), lead arrangers, bookrunners, syndication agents Parent and Merger Subsidiary will have at the Closing funds sufficient to (x) pay the aggregate Merger Consideration payable on or other similar entities in a manner promptly following the Closing Date upon the terms contemplated by the Debt Commitment Letter). As of the date of this Agreement, (y) consummate the Debt Merger and pay all related fees and expenses of Parent, Merger Subsidiary and their respective Representatives required to be paid in connection with the Closing pursuant to this Agreement and (z) make any payments and/or settle any conversions required to be made at or after the Closing under the Indentures in respect of the Convertible Notes (including any make-whole adjustment to the conversion rate with respect thereto) as a result of the Transactions (without giving effect to any payments received pursuant to the Convertible Note Capped Call Options) and to repurchase the Convertible Notes as required pursuant to Article 15 of the Indentures (such required funds, collectively, the “Required Amount”).
(b) The Equity Commitment Letter is in full force and effect and constitutes the legal, is a valid and binding obligation of Parent and, to the Knowledge of Parent, each of and Merger Subsidiary and the other parties theretothereto (subject to applicable bankruptcy, enforceable insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity). The Company is a third-party beneficiary of the Equity Commitment Letter on the terms set forth therein. Parent or Merger Subsidiary has fully paid, or caused to be paid, any and all commitment or other fees in accordance connection with its terms against Parent and, the Equity Commitment Letter that are payable on or prior to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required AmountAgreement Date. As of the date Agreement Date, the Equity Commitment Letter has not been amended or modified in any respect, no such amendment or modification is contemplated and the respective commitments contained therein have not been withdrawn, rescinded or otherwise modified in any respect. As of this Agreementthe Agreement Date, (i) no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, or Merger Subsidiary or any other party thereto under the Equity Commitment Letter. There are no conditions precedent to the Knowledge funding of Parentthe full amount of the Financing other than the conditions precedent set forth in the Equity Commitment Letter delivered to the Company, any other parties thereto under and, as of the Agreement Date, Parent has no reason to believe that any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver closing of the conditions set forth in Section 6.01 and Section 6.02 and taking into account Financing that is required to be satisfied will not be satisfied, or that the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be made available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt FinancingClosing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there There are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter Contracts to which Parent or any of its Affiliates is a partyparty related to the funding or investing, as applicable, of the full amount of the Financing other than as expressly set forth in the Financing LettersEquity Commitment Letter.
Appears in 1 contract
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ a) Purchaser has delivered to the Company Casella (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement letters (as may be amended or modified in accordance with the terms hereofcollectively, the “Debt Commitment LetterLetters”) from the lenders named therein (each, a “Lender”, and collectively, the “Lenders”), pursuant to which such Lenders have committed, upon the terms and subject only to the conditions set forth therein, to provide debt financing in the aggregate amount of $[**] to Purchaser, in connection with the transactions contemplated by this Agreement and (b) a copy of any fee fully executed equity commitment letters related to the Debt Commitment Letter (collectively, the “Fee Equity Commitment Letters” and, together with the Debt Commitment LetterLetters, the “Financing Commitment Letters”) from the investors named therein (which may be redacted to remove the fee amountseach, economic terms and the terms of any a “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant toSponsor”, and subject collectively, the “Sponsors”), pursuant to which such Sponsors have committed, upon the terms and subject only to the conditions ofset forth therein, to provide equity financing in the aggregate amount of $[**] to Parent in connection with the transactions contemplated by this Agreement. The financing contemplated pursuant to the Debt Commitment Letter, the lender thereunder has committed Letters is hereinafter referred to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (as the “Debt Financing” and the financing contemplated pursuant to the Equity Commitment Letters is hereinafter referred to as the “Equity Financing.” The aggregate financing contemplated pursuant to the Commitment Letters collectively is hereinafter referred to as the “Financing.”).
(b) The Financing provides for, subject only to the conditions set forth in the Commitment Letters, all funds necessary to pay in cash all amounts required by this Agreement to be paid by Purchaser at the Closing.
(c) As of the date hereof, neither the Debt each Commitment Letter nor any Fee constitutes a legal, valid, duly authorized and binding obligation of the parties thereto, enforceable against such parties in accordance with their respective terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally and by general equitable principles. No Commitment Letter has been amended, restated amended or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, . The commitments contained in the Debt Commitment Letter is Letters have not been withdrawn or rescinded in any respect. All commitment fees and all other amounts required to be paid under the Commitment Letters have been paid in full force or will be duly paid in full when due and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition default thereunder.
(d) As of the Debt Commitment Letterdate hereof, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any Purchaser has no reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or (other than any other funds necessary to pay the Required Amount conditions set forth in Section 7.2, as applicable) will not be available to Parent on consummated as contemplated in the Closing Date. Parent has fully paid Commitment Letters.
(or caused to be paide) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as As of the date hereof, there are no side letters assuming the accuracy of the representations and warranties set forth in Article IV (but without giving effect to any knowledge, materiality, Material Adverse Effect qualification or other agreementsexception contained therein) and compliance by Sellers with their covenants and agreements hereunder, contracts or arrangements of any kind relating to the Debt Knowledge of Purchaser, there is no fact, occurrence or condition that makes any of the assumptions or statements set forth in any Commitment Letter inaccurate in any material respect or that would cause the commitments provided in any Commitment Letter to which Parent be terminated or rendered ineffective or any of its Affiliates is a partythe conditions contained therein not to be met; provided, other than however, Purchaser expresses no opinion as expressly to whether the conditions set forth in the Financing LettersSection 7.2 will be satisfied.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Casella Waste Systems Inc)
Financing. At Parent and Sub have previously delivered to the ClosingCompany the following: (i) a fully executed commitment letter (the "Senior Debt Letter") from Bear, assuming Stearns & Co. Inc., J.P Morgan Securities Inc., Deutsche Bank Securit▇▇▇ ▇▇▇., Bear Stear▇▇ ▇▇▇▇▇▇▇te Lending Inc., JPMorgan Chase Bank and Deutsche Bank ▇▇ ▇▇▇man Islands Branch (the funding of the Debt Financing in accordance with the Debt Commitment Letter "Banks") and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment accepted by Parent, Merger Sub providing the terms and conditions upon which the Surviving Corporation Banks have committed to provide the senior secured revolving credit portion of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, financing required to be paid in connection withwith the Merger, or as (ii) a result of, the consummation of the Transactions fully executed forward underwriting commitment (the “Required Amount”). As of the date hereof"Subordinated Debt Letter") from Bear, Stearns & Co. Inc., J.P Morgan Securities Inc. and Deutsche Bank Secu▇▇▇▇▇▇ has delivered Inc. and acce▇▇▇▇ ▇▇ ▇▇rent with respect to the placement of subordinated debt of the Surviving Corporation pursuant to an offering under Rule 144A of the Exchange Act, (iii) a fully executed letter (the "Kelso Equity Commitment Letter") from Kelso & Company ("Kelso") and a▇▇▇▇▇ed by Parent with respect to a po▇▇▇▇▇ of the equit▇ ▇▇▇ancing required in connection with the Merger and (iv) a correct and complete fully executed copy commitment letter from Church & Dwight Co., Inc. (the "Church & Dwight Letter") and accepted by Paren▇ ▇▇▇▇ respect to a portion of t▇▇ ▇▇▇ity/debt financing required in connection with the debt commitment letterMerger (the Church & Dwight Letter, dated as together with the Senior Debt Letter, the Subordinated ▇▇▇▇ Letter and the Kelso Equity Commitment Letter, the "Financing Letters"). The financi▇▇ ▇▇ntemplated by the Financing Letters (the "Financing") is sufficient to pay the aggregate Merger Consideration and Cash Amount and pay all fees and expenses (including, without limitation, legal, accounting and investment banking expenses, change of even date herewithcontrol payments, including all exhibitsand repayment of indebtedness) to be paid by Parent, schedulesSub, annexes the Company or any of their respective affiliates related to the transactions contemplated hereby. The Financing Letters are in full force and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with hereof. The obligations to fund the terms hereof, commitments under the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that Letters are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and not subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, condition other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, All commitment and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid under the Financing Letters on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Lettershereof have been paid.
Appears in 1 contract
Financing. At the Closing, assuming the funding Parent has delivered to Company true and complete copies of the fully executed debt commitment letters and Redacted Fee Letters, each dated on or about the date of this Agreement (collectively, together with all exhibits, schedules and annexes thereto, the “Debt Financing Commitments”) among Guarantor and the persons identified therein (together with any persons that become a party thereto after the date of this Agreement in accordance with the terms and conditions thereof, the “Debt Commitment Letter Financing Sources”), pursuant to which each of the lenders party thereto has committed, subject to the terms and after giving effect conditions thereof, to any “flex” provision provide debt financing in the Debt Commitment Letter amounts set forth therein (together with any term loans or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds debt securities issued in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation lieu of the aggregate amount of bridge loan facility contemplated by the Merger ConsiderationDebt Financing Commitments, the “Debt Financing”) for the purpose of, among other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Optionsthings, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or funding the Surviving Corporation Subscription Amount and any other amounts, including Indebtedness of the Company and its Subsidiaries, amounts required to be paid in connection with, by Parent or as a result of, Merger Sub pursuant to this Agreement or the consummation of Subscription Agreement at the Transactions (the “Required Amount”)Closing. As of the date hereof, ▇▇▇▇▇▇ has also delivered to the Company (a) a correct true and complete fully executed copy of the debt fully executed equity commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee LettersEquity Financing Commitment” and, together with the Debt Commitment LetterFinancing Commitments, the “Financing LettersCommitments”) ), from the person identified therein (which may be redacted to remove together with any persons that become a party thereto after the fee amounts, economic date of this Agreement in accordance with the terms and conditions thereof, the terms of any “flexEquity Financing Source” provisions that are customarily redacted in transactions of this typeand, none of which redactions covers terms that reduce the amount of together with the Debt Financing below Sources, the Required Amount or adversely affect “Financing Sources”), reflecting such person’s commitment to provide to Guarantor at the conditionalityClosing the cash amount set forth therein, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter thereof (the “Equity Financing” and, together with the Debt Financing, the “Financing”). As Each of the date hereofFinancing Commitments, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawnform so delivered, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the is a legal, valid and binding obligation of Parent Guarantor and, to the Knowledge knowledge of Parent, each of the other parties thereto, enforceable against each such party in accordance with its terms against Parent and(except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally or by principles governing the availability of equitable remedies). The Financing Commitments have not been amended, supplemented or otherwise modified in any respect, and to the knowledge of Parent, no amendment or modification to, or withdrawal, termination or rescission of, the Financing Commitments is currently contemplated (except to the extent amended, supplemented, modified or replaced in a manner not prohibited by the terms of this Agreement), and the commitments contained in the Financing Commitments have not, to the Knowledge knowledge of Parent, each of the other parties theretobeen withdrawn, subject to the Bankruptcy and Equity Exceptionreduced or rescinded in any respect. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no No event has occurred whichthat, with or without notice, lapse of time or both, constitutes or would reasonably be expected to constitute a material default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent Guarantor or any of its Affiliates or, to the Knowledge knowledge of Parent, any other parties thereto thereto, under any term or condition of the Debt Commitment LetterFinancing Commitments, and (ii) assuming and, to the satisfaction or waiver knowledge of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing PeriodParent, Parent does not have any reason no reasonable basis exists to believe that any term or condition precedent to the funding of any of the conditions to Financing set forth in the Debt applicable Financing Commitments will not be satisfied on a timely basis, or that any portion of the Debt Financing or any other funds necessary to pay the Required Amount be made thereunder will otherwise not be available to Parent on a timely basis to consummate the Closing DateTransactions at the time required pursuant to the Transaction Documents. Parent or its applicable Affiliate has fully paid (or caused to be paid) paid any and all commitment fees or other fees to required by the extent required Financing Commitments to be paid thereunder on or prior to the date of this Agreement Agreement. Assuming the satisfaction of the conditions set forth in connection the Financing Commitments and the satisfaction of the closing conditions set forth in Article VII of this Agreement, the aggregate proceeds contemplated by the Financing Commitments, when funded in accordance with the Debt FinancingFinancing Commitments, together with the Other Sources, will provide Parent with funds sufficient to pay the Subscription Amount and any other amounts required to be paid by Parent or Merger Sub pursuant to this Agreement or the Subscription Agreement, in each case, at the Closing. Except for The obligations to make the Fee Letters and customary engagement letters with respect Financing available to Guarantor or its applicable Affiliate pursuant to the Debt terms of the Financing (none Commitments are not subject to any conditions precedent or other contingencies related to the funding of which reduces the full amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersCommitments. As of the date of this Agreement, there are no contracts or other agreements, arrangements or understandings (whether oral or written) to which Parent, Merger Sub, Guarantor, the Equity Financing Source or any of their respective Affiliates is a party related to the Financing other than as expressly contained in the Financing Commitments and delivered to Company on or prior to the date of this Agreement.
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Financing. At If any Grantor shall be subject to any Insolvency Proceeding and either Senior Agent consents to the Closing, assuming the funding use of post-filing/post-petition cash receipts or “cash collateral” (as such term is defined in Section 3 63(a) of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any Bankruptcy Code) (collectively, “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discountCash Collateral”), Parent will have immediately available funds in an amount as is necessary on which such Senior Agent has a Lien or to consummate the Transactions, including the payment permit any Grantor to obtain financing provided by Parent, Merger Sub and the Surviving Corporation any one or more Senior Claimholders under Section 364 of the aggregate amount of the Merger ConsiderationBankruptcy Code, other amounts payable any similar Bankruptcy Law or pursuant to Article II an order granted in any Insolvency Proceeding granting a priority DIP lender’s or interim financing charge (including all amounts payable in respect of Company Stock Optionssuch financing, Company Restricted Shares and Company RSUs under this Agreementa “DIP Financing”), any fees and expenses of or payable by Parentthen Junior Agent agrees that, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in Section 6.5(b), it will consent to such Debt Commitment Letter Cash Collateral use and will not be entitled to raise (and will not raise or support any Person in raising), but instead shall be deemed to have hereby irrevocably and absolutely waived, any objection, and shall not otherwise in any manner be entitled to oppose or will oppose or support any Person in opposing, such Cash Collateral use or such DIP Financing (including, except as provided below (including, without limitation, in Section 6.5(b)), any claim that the “Debt Financing”). As Junior Claimholders are entitled to Adequate Protection on account of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained their interests in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in Junior Collateral as a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent condition thereto) and, to the Knowledge extent the Liens securing the Senior Lien Obligations are discharged, subordinated to, or pari passu with such DIP Financing, Junior Agent will subordinate its Liens in the Collateral to the Liens securing such DIP Financing; provided that Junior Agent may object to such DIP Financing if (a) the sum of Parent(i) the maximum aggregate principal amount of Indebtedness that may be outstanding from time to time under such DIP Financing plus, each without duplication, (ii) the aggregate principal amount of loans and the aggregate face amount of Letters of Credit issued but not reimbursed under the Senior Credit Agreements (after giving effect to any closing with respect to such DIP Financing following the final hearing in respect thereof) exceeds the sum of (A) the Senior Lien Obligations Cap, plus (B) $20,000,000, (b) any such Cash Collateral use or DIP Financing compels any Grantor to seek confirmation of a specific Plan of Reorganization for which all or substantially all of the other parties thereto, enforceable in accordance with its material terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment LetterCash Collateral order or DIP Financing documentation, (c) the terms of such DIP Financing or Cash Collateral use require any Grantor to seek approval for any Plan of Reorganization that is not a Conforming Plan of Reorganization, or (d) the terms of such DIP Financing require such Junior Claimholders to extend additional credit pursuant to such DIP Financing. Assuming Junior Agent agrees that it shall not, directly or indirectly, provide, offer to provide, or support any DIP Financing secured by a Lien senior to or pari passu with the satisfaction Liens securing the Senior Lien Obligations without the consent of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing willSenior Agents. If, in the aggregate and together connection with any cash Cash Collateral use or other funds available DIP Financing, any Liens on the Collateral held by Senior Claimholders are subject to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred whicha surcharge or are subordinated to an administrative priority claim, with a professional fee “carve out,” or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, fees owed to the Knowledge of ParentUnited States Trustee, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver a court ordered priority administration charge to secure fees and expenses of the conditions set forth in Section 6.01 Grantor’s legal counsel and Section 6.02 other professionals, the monitor and taking into account its legal counsel and other professionals or (iii) a court ordered priority directors’ and officers’ charge to secure indemnities given by the Marketing Period, Parent does not have any reason Grantors to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters their respective directors and customary engagement letters with respect to the Debt Financing (none of which reduces officers and so long as the amount of such surcharge, claim, carve out, fees administration or directors’ and officers charge is reasonable under the Debt Financing below circumstances, then the Required Amount Liens on the Collateral of Junior Claimholders shall also be subordinated to such interest, claim, administration charge or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating directors’ and officers’ charge and shall remain subordinated to the Debt Commitment Letter to which Parent or any Liens on the Collateral of its Affiliates is a party, other than as expressly set forth in the Financing LettersSenior Claimholders consistent with this Agreement.
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Financing. At Parent and Purchaser have, on the Closing, assuming the funding date of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct true and complete fully executed copy copies of the debt financing commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement letters (as may be amended or modified in accordance with the terms hereofcollectively, the “Debt Commitment LetterLetters”) and (b) a copy of any fee letters related to the Debt Commitment Letter an equity commitment letter (the “Fee Equity Commitment Letters,” and, and together with the Debt Commitment LetterLetters, the “Financing Commitment Letters”) ), except that the fees and other commercially sensitive matters specified in the Debt Commitment Letters may have been redacted (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce relate to the amount of the Debt Financing below the Required Amount or adversely affect the amount, conditionality, enforceability, availability or termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, each of the Debt Commitment Letter Letters is in full force and effect and constitutes the is a legal, valid and binding obligation of Parent Parent, the Equity Financing Sources in the Equity Commitment Letter (in the case of the Equity Commitment Letter) and, to the Knowledge knowledge of Parent, each the Debt Financing Sources (in the case of the other parties theretoDebt Commitment Letters), enforceable in accordance with its terms against Parent and, except (i) to the Knowledge extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting the enforcement of Parentcreditors’ rights generally and (ii) that the availability of equitable remedies, each of the other parties theretoincluding, specific performance, is subject to the Bankruptcy discretion of the court before which any proceeding thereof may be brought. Assuming, (x) the accuracy of the representation and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly warranties set forth in Section 3.3, Section 3.4(b), Section 3.5 and Section 3.9(a)(v) and (y) the Debt performance by the Acquired Corporations of the covenants set forth in Section 6.2(b)(ii) and Section 6.2(b)(v), the aggregate net proceeds contemplated by the Commitment Letter. Assuming Letters provide Parent and Purchaser, upon the satisfaction of terms and subject to the conditions set forth in Section 6.01 therein and 6.02the funding thereof, with sufficient funds to consummate the net proceeds Transactions, including to consummate the Offer and pay the Merger Consideration and the fees and expenses of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant related to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amounttransactions contemplated hereby. As of the date of this Agreement, (i) no event has occurred whichand assuming the truth and accuracy of the representations set forth in Section 3 in a manner that would satisfy the condition set forth the Offer Conditions and assuming the satisfaction of the Offer Conditions, with Parent does not know of any circumstance or without notice, lapse of time or both, would condition that could reasonably be expected to constitute a default prevent or breach or result in a failure to satisfy a condition precedent, in each case, on substantially delay the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Letters.such funds at or
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Financing. At Buyer has delivered to Company true, complete and correct signed counterpart(s) of (i) the Closingequity commitment letter, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount dated as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ from the Investor (the “Equity Commitment Letter”), pursuant to which the Investor has delivered committed, subject to the Company terms and conditions set forth therein, to provide equity financing in an aggregate amount set forth therein (a“Equity Financing”) a correct and complete fully executed copy of (ii) the debt commitment letter, dated as of even the date herewithhereof, including all exhibitsby and among Intermediate Holdings, schedulesMerger Sub, annexes Bank of America, N.A., Banc of America Bridge LLC, Banc of America Securities LLC, Barclays Capital, the investment banking division of Barclays Bank PLC, ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇▇ Fargo Securities, LLC and amendments to such letter in effect as WF Investment Holdings, LLC and excerpts of those portions of the date of this Agreement fee letter that contain any conditions to funding or “flex” provisions (as may be amended or modified in accordance with excluding provisions related solely to fees and economic terms agreed to by the terms hereof, parties) (the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Equity Commitment Letter, the “Financing LettersCommitments”) (), pursuant to which may be redacted to remove the fee amountslenders party thereto have agreed, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions ofset forth therein, the Debt Commitment Letterto provide or cause to be provided, the lender thereunder has committed to lend debt financing in the amounts set forth therein to Merger Sub in connection with the transactions provided for the purposes set forth in such Debt Commitment Letter herein (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor Commitments have not been amended or modified in any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated manner and the respective obligations and commitments contained in the Debt Commitment Letter Commitments have not been withdrawn, rescinded, amended, restated withdrawn or otherwise modified rescinded in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter)respect. As of the date hereof, the Commitments (i) are (solely to the knowledge of this AgreementIntermediate Holdings and Merger Sub, in the case of the Debt Commitment Letter is Letter) in full force and effect effect, and constitutes (ii) are the legal, valid and binding obligation obligations of Parent Buyer (in the case of the Equity Commitment Letter only), and Intermediate Holdings and Merger Sub (in the case of the Debt Commitment Letter only) and, to the Knowledge knowledge of ParentBuyer (in the case of the Equity Commitment Letter only), each and Intermediate Holdings and Merger Sub (in the case of the Debt Commitment Letter only), of the other parties thereto, enforceable in accordance with its terms against Parent andeach case except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and by the application of general principles of equity. The Commitments are subject to no contingencies or conditions related to the Knowledge of Parent, each funding of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, financing other than as expressly those set forth in the Debt Commitment Letter. Assuming Commitments and other than the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing willprovisions relating solely to fees, in the aggregate and together with any cash or other funds available to Parent and Merger Subeach case, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable as amended pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amountterms set forth herein. As of the date of this Agreementhereof, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent Buyer (in the case of the Equity Commitment Letter only), or Intermediate Holdings or Merger Sub (in the case of the Debt Commitment Letter only) or, to the Knowledge knowledge (without any obligation to make any inquiry) of ParentBuyer (in the case of the Equity Commitment Letter only), or Intermediate Holdings and Merger Sub (in the case of the Debt Commitment Letter only), any other parties thereto party to the Commitments, under any term or condition of the Debt Commitment LetterCommitments. As of the date hereof, and (ii) assuming the satisfaction or waiver of the conditions condition set forth in Section 6.01 7.1 will be satisfied at or prior to the Closing, and Section 6.02 and taking into account assuming compliance in all material respects by the Marketing PeriodCompany Entities of their respective obligations under this Agreement, Parent does not have any neither Buyer (in the case of the Equity Commitment Letter only), nor Intermediate Holdings or Merger Sub (in the case of the Debt Commitment Letter only) has reason to believe that it will be unable to satisfy on a timely basis any term or condition of Closing that is required to be satisfied by it as a condition of the conditions Commitments to which it is a party or that the Debt Financing financing contemplated by the Commitments to which it is a party will not be satisfied made available to Buyer (in the case of the Equity Commitment Letter only), or that Intermediate Holdings and Merger Sub (in the case of the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent Commitment Letter only) on the Closing Date. Parent has Buyer, Intermediate Holdings and Merger Sub have fully paid (or caused to be paid) any and all commitment fees or and other fees required by the Commitments to the extent required which they are a party to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating . Subject to the Debt Commitment Letter to which Parent or any terms and conditions of its Affiliates is a party, other than as expressly the Commitments and this Agreement and assuming the condition set forth in Section 7.1 will be satisfied at or prior to the Financing LettersClosing, and assuming compliance in all material respects by the Company Entities of their respective obligations under this Agreement, the aggregate proceeds contemplated by the Commitments, when funded in accordance with their terms, will in the aggregate be sufficient to (i) consummate the Merger upon the terms contemplated by this Agreement, (ii) effect any other repayment or refinancing of debt contemplated in connection with the Merger or the Commitments (other than in respect of the Refinancing) and (iii) pay all related fees and expenses to be paid by Buyer, Intermediate Holdings or the Surviving Corporation.
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Sources: Contribution and Merger Agreement
Financing. At (a) Assuming the Closing, assuming the funding accuracy of the Debt representations and warranties set forth in Article III and performance by the Company of its obligations under this Agreement, the amount of funds contemplated to be provided pursuant to the Financing in accordance Letters (as defined below), together with Company cash and cash equivalents, are expected as of the Debt Commitment Letter date hereof to be sufficient, if funded, to (A) pay the aggregate Merger Consideration and after giving effect to any “flex” provision in the Debt Commitment Letter repayment or refinancing of Indebtedness contemplated by this Agreement or the related fee letters Financing Letters, (including with respect to B) pay any and all fees and original issue discount), Parent will have immediately available funds in an amount as is necessary expenses required to consummate the Transactions, including the payment be paid by Parent, Merger Acquisition Sub and the Surviving Corporation in connection with the Merger and the Financing, and (C) satisfy all of the aggregate amount other payment obligations of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Acquisition Sub or and the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions contemplated hereunder.
(the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ b) Parent has delivered to the Company (a) a true, complete and correct and complete fully executed copy of (A) the debt executed commitment letters, dated as of March 8, 2010, among Acquisition Sub, CCMP Capital Investors II, L.P. and CCMP Capital Investors (Cayman) II, L.P. (the “Equity Financing Letters”), pursuant to which investors party thereto have committed severally and not jointly and, subject to the terms and conditions thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (B) the executed commitment letter, dated as of even date herewithMarch 8, including all exhibits2010, schedulesamong Parent, annexes Acquisition Sub, Bank of America, N.A. and amendments to such letter in effect as Banc of the date of this Agreement America Securities LLC (as the same may be amended or modified replaced and including any executed commitment letter for the issuance of any mezzanine notes in accordance with substitution of portions of the terms hereofcommitments thereunder or any executed commitment letter for Alternate Financing, in each case, pursuant to Section 6.4, the “Debt Commitment Financing Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Equity Financing Letter, the “Financing Letters”) (), pursuant to which may be redacted to remove the fee amountslenders party thereto have committed, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions ofthereof, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing” and, together with the Equity Financing, the “Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement .
(in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the c) The Financing Letters are (A) legal, valid and binding obligation obligations of Parent and Acquisition Sub, as applicable, and, to the Knowledge knowledge of Parent, each of the other parties thereto and (B) enforceable in accordance with their respective terms against Parent and Acquisition Sub, as applicable, and, to the knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent andeach case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally, and general principles of equity. Prior to the Knowledge of Parentdate hereof, each none of the other parties theretoFinancing Letters has been amended or modified, subject to and as of the Bankruptcy date hereof the respective obligations and Equity Exceptioncommitments contained in the Financing Letters have not been withdrawn or rescinded in any respect. As of the date hereof, the Financing Letters are in full force and effect. There are no conditions precedent or other contingencies related to the obligation to make funding of the Debt full amount of the Financing available to (including in any side letter or other agreements, contracts or arrangements disclosed in Section 4.9 of the Parent pursuant to the Debt Commitment Disclosure Letter), other than as expressly set forth in the Debt Commitment LetterFinancing Letters. Assuming the satisfaction Except as set forth on Section 4.9 of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing)Disclosure Letter and, as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating related to the Debt Commitment Letter to which Parent funding or any investing, as applicable, of its Affiliates is a party, the full amount of the Financing other than as expressly set forth in the Financing Letters and delivered to the Company prior to the date hereof. As of the date hereof, Parent and Acquisition Sub have fully paid, or caused to be fully paid, any and all commitment or other fees which are due and payable on or prior to the date hereof pursuant to the terms of the Financing Letters.
Appears in 1 contract
Sources: Merger Agreement (infoGROUP Inc.)
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), a) Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a true, correct and complete fully executed copy copies, as of the debt date of this Agreement, of (i) an executed commitment letterletter (the “Equity Commitment Letter”) from Frontenac IX Private Capital Limited Partnership, dated Frontenac IX Private Capital A Limited Partnership, and Frontenac IX Private Capital (Cayman) Limited Partnership (collectively, the “Equity Providers” and each an “Equity Provider”) to each purchase for cash, in each case subject to the terms and conditions therein, equity securities of Parent in the aggregate amount set forth therein (being collectively referred to as of even date herewiththe “Equity Financing”), (ii) an executed commitment letter (including all exhibits, schedules, annexes schedules and amendments to such letter thereto in effect as of the date of this Agreement Agreement) (as may be amended or modified in accordance with the terms hereof“Senior Debt Financing Letter”) from RBS Citizens, N.A., Citizens Bank of Pennsylvania, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Bank of America, N.A., and SunTrust Bank (collectively, the “Debt Commitment LetterSenior Lenders”) to provide and (b) a copy of any fee letters related arrange, subject to the Debt Commitment Letter terms and conditions therein, the debt financing in the amounts set forth therein (the “Fee LettersSenior Debt Financing”), (iii) an executed commitment letter (including all exhibits, schedules and amendments thereto in effect as of the date of this Agreement) (the “Mezzanine Debt Financing Letter” and, together with the Equity Commitment Letter and Senior Debt Commitment Financing Letter, the “Financing Letters”) from PNC Mezzanine Capital (which may be redacted the “Mezzanine Lender” and, together with the Senior Lenders, the “Lenders”) to remove the fee amountsprovide and arrange, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions oftherein, the Debt Commitment Letter, the lender thereunder has committed to lend debt financing in the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Mezzanine Debt Financing” and, together with the Equity Financing and the Senior Debt Financing, the “Financing”). As ) and (iv) the most recent annual and quarterly financial statements of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior Parent provided to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required AmountLenders. As of the date of this Agreement, (i) the Financing Letters are in full force and effect, are valid, binding and enforceable obligations of Parent, and to the Knowledge of Parent, the other parties thereto, and have not been withdrawn or terminated or otherwise amended or modified in any respect without the prior written consent of the Company, and no such amendment or modification is contemplated by Parent or, to Parent’s Knowledge, any other party thereto, and (ii) assuming the accuracy of the Company’s representations and warranties contained in this Agreement, Parent is not in breach of any of the terms or conditions set forth therein and, except as set forth in Section 6.8(a) of the Parent Disclosure Letter, no event has occurred which, with or without notice, lapse of time or both, would could reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions precedent set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing DateLetters. Parent has fully paid (or caused to be paid) any and all commitment fees or other fees to in connection with the extent required to be paid Financing Letters that are payable on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersAgreement.
Appears in 1 contract
Sources: Merger Agreement (Ats Corp)
Financing. At the Closing, assuming the funding of the Debt Debtor in Possession Financing in accordance The Debtors shall be provided with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions debtor-in-possession financing (the “Required AmountDIP Facilities”). As ) consisting of one or more of the date hereof, ▇▇▇▇▇▇ has delivered to the Company following: (a) a correct and complete fully executed copy of super-priority, secured, debtor-in-possession revolving credit facility (the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to “DIP Revolving Facility”) provided by the ABL Lenders (in such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereofcapacity, the “Debt Commitment LetterDIP Revolving Lenders”) and (b) a copy of any fee letters related to the Debt Commitment Letter super-priority, secured, debtor-in-possession term loan facility (the “Fee Letters” andDIP Term Facility”) provided by one or more of the Term Lenders (in such capacity, the “DIP Term Lenders”, and together with the Debt Commitment LetterDIP Revolving Lenders, the “Financing LettersDIP Lenders”). The DIP Facilities, and all borrowings thereunder, shall be subject to a budget updated monthly (with be PIK and 50% in cash. weekly cash reporting) and approved by the DIP Lenders. The terms and conditions of the DIP Facilities shall be acceptable to the Supporting Noteholders and the Debtors, acting reasonably and in good faith. Plan Funding The Reorganized Debtors shall be funded on effective date of the Plan (the “Effective Date”) (which may be redacted to remove by the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount proceeds of the Debt Financing below Rights Offering (as defined below) and, if necessary, the Required Amount or adversely affect the conditionality, enforceability, termination or availability Exit Facility (as defined below). The proceeds of the Debt Financing). Pursuant toRights Offering and Exit Facility shall be in an aggregate amount which shall be sufficient to fund required distributions under the Plan, and including to pay in full all outstanding amounts under the DIP Facilities (subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As conversion of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior DIP Term Loans to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated New Common Stock as described below) and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, ABL Facility on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Effective Date. Parent has fully paid (or caused Rights Offering Pursuant to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement and in connection with the Debt Financing. Except for consummation of the Fee Letters and customary engagement letters with respect Restructuring Transactions, following confirmation of the Plan, the Company will distribute rights (the “Rights”) to the Debt Financing holders of 2021 Note claims against the Debtors and holders of 2018 Note claims against the Badlands (none DE) Debtor that will permit such the holders thereof to acquire, in the aggregate, $150 million of which reduces New Common Stock (the amount “Rights Offering”). The New Common Stock issued in connection with the Rights Offering will be sold at a total enterprise valuation of the Debt Reorganized Debtors on the Effective Date of $350 million (the “Plan Value”). The Rights shall be exercisable prior to the Effective Date. Exit Financing below To the Required Amount extent necessary after the Rights Offering, the Reorganized Debtors shall be funded on the Effective Date by a new first lien, senior secured exit facility (the “Exit Facility”), which Exit Facility shall be in form and substance acceptable to the Supporting Noteholders. The Debtors and the Supporting Noteholders will work in good faith to source and execute on the Exit Facility, which can be in the form of an asset backed revolver, term loan or adversely affects combination thereof. The Term Loan Lenders shall provide a standby commitment to fund the conditionalityExit Facility. Such Term Loan Lenders shall be paid a six percent (6%) fee, enforceability, termination payable in cash and or availability New Common Stock at the election of the Debt Financing)Term Loan Lenders, as of in connection with the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersExit Facility Commitment.
Appears in 1 contract
Sources: Restructuring Support Agreement
Financing. At (a) Assuming the Closing, assuming the funding accuracy of the Debt Financing representations and warranties set forth in accordance with Section 4.05, the Debt aggregate proceeds contemplated by the Commitment Letter Letters will be sufficient to enable Parent and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary Merger Subsidiary to consummate the TransactionsMerger upon the terms contemplated by this Agreement, including to pay the payment by Parent, Merger Sub and the Surviving Corporation Consideration for all of the aggregate amount shares of the Merger ConsiderationCompany Stock on a fully-diluted basis, other amounts payable pursuant to Article II (including make all amounts payable payments in respect of the Company Stock Options, Company Restricted Shares Shares, Company Performance Shares, Company Restricted Stock Unit Awards, Company Performance Stock Unit Awards, Company Share Units and Company RSUs under this Agreement)Deferred Stock Units, any to pay all related fees and expenses of or payable by Parent, Merger Sub or Subsidiary and their respective Representatives, and to make all other payments required by this Agreement and the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions Financing.
(the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ b) Parent has delivered to the Company (a) a correct true and complete fully copies of (i) the executed copy of the debt equity commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, from Investor (the “Equity Commitment Letter”), pursuant to which Investor has committed to invest the amount set forth therein (the “Equity Financing”), and (ii) fully executed commitment letter (the “Debt Commitment Letter”) from Jefferies Finance LLC, KeyBank National Association and (b) a copy of any fee letters related to the Debt Commitment Letter KeyBanc Capital Markets Inc. (the “Fee Letters” and, together Lenders”) confirming their respective commitments to provide Parent with debt financing in connection with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter contemplated hereby (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior .
(c) Except for fee letters with respect to the execution fees and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any related arrangements with respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment LetterFinancing, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 which Parent has delivered true, correct and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant complete copies to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or Company prior to the date of this Agreement (in connection with a redacted form removing only the Debt Financing. Except for the Fee Letters and customary engagement letters with respect fee information, but which fee information does not relate to the Debt Financing (none of which reduces amounts or conditionality of, or contain any conditions precedent to, the amount funding of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating related to the funding of the full amount of the Debt Commitment Letter to which Parent or any of its Affiliates is a partyFinancing, other than as expressly set forth in the Debt Commitment Letter and delivered to the Company prior to the date of this Agreement.
(d) Each of the Commitment Letters is in full force and effect and is a valid and binding obligation of Parent and, to the knowledge of Parent, the other parties thereto. None of the Commitment Letters have been amended or modified in any respect, and the respective commitments contained therein have not been withdrawn, rescinded or otherwise modified in any respect. No event has occurred which would constitute a breach or default (or an event which with notice or lapse of time or both would constitute a default), or the failure of any condition, on the part of Parent or its Affiliates under the Commitment Letters or, to the knowledge of Parent on the part of the Lenders or the Investor. There are no conditions precedent to the funding of the full amount of the Financing other than the conditions precedent set forth in the Commitment Letters, and Parent has no reason to believe that it may not be able to satisfy any term or condition of closing of the Financing that is required to be satisfied as a condition of the Financing, or that the Financing may not be made available to Parent on the Closing Date. Parent (or an Affiliate thereof) has fully paid any and all commitment fees or other fees required by the Commitment Letters to be paid.
(e) Neither Parent nor Merger Subsidiary is aware of any direct or indirect limitation or other restriction on the ability of the Lenders in the Debt Financing to provide financing for other potential purchasers of the Company.
(f) Parent acknowledges and agrees that notwithstanding anything to the contrary in this Agreement, the consummation of the Financing shall not be a condition to the obligation of Parent and Merger Subsidiary to consummate the Merger and the other transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Zep Inc.)
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ Parent has delivered to the Company true and complete copies of (a) a correct and complete fully the executed copy of the debt commitment letterletter(s), dated as of even the date herewithhereof, among Parent and the Debt Financing Sources parties thereto (including all exhibits, schedulesschedules and annexes thereto, annexes and amendments the executed fee letter associated therewith and referenced therein (except that the fee letter is subject to such letter in effect redaction as of the date of this Agreement (further described below), as may be amended or modified in accordance with the terms hereof, collectively, the “Debt Commitment LetterFinancing Commitments”), pursuant to which the Debt Financing Sources party thereto have committed, subject to the terms and conditions thereof, to provide or cause to be provided the debt amounts set forth therein (the “Debt Financing”) for the purposes of funding a portion of the transactions contemplated by this Agreement and related fees and expenses and the refinancing of certain outstanding indebtedness of Parent and/or its Subsidiaries and the Company and/or the Company Subsidiaries specified therein, and (b) a copy the executed equity commitment letter(s), dated as of any fee letters related to the Debt Commitment Letter date hereof, among Parent and the other parties thereto (including all exhibits, schedules and annexes thereto, the “Fee LettersEquity Financing Commitments,” and, together with the Debt Commitment LetterFinancing Commitments, the “Financing LettersCommitments”) (), pursuant to which may be redacted to remove the fee amountseach such party has committed, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions ofthereof, to invest the Debt Commitment Letter, the lender thereunder has committed to lend the amounts cash amount set forth therein for the purposes set forth in such Debt Commitment Letter (the “Equity Financing,” and together with the Debt Financing, the “Financing”). As None of the date hereof, neither the Debt Commitment Letter nor any Fee Letter Financing Commitments has been amended, restated amended or otherwise modified or waived prior to the execution and delivery of this Agreementmodified, no amendment, restatement such amendment or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add or replace lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter)Financing Commitments) and the respective commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect. As Except for fee letters (complete copies of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, which have been provided to the Knowledge of ParentCompany, each of with only fee amounts, “market flex” provisions and other economic terms redacted; provided that Parent represents and warrants that the “market flex” provisions and other parties thereto, enforceable redacted terms in accordance with its terms against Parent and, to such fee letters do not permit the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount imposition of any “flex” provisionsnew conditions (or the expansion of any existing conditions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, or modify any conditions with or without notice, lapse of time or both, would reasonably be expected respect to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay reduction in the Required Amount will not be available to Parent on amount of the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to Debt Financing below the extent amount required to be paid on or prior to satisfy the date Financing Uses (after taking into account the amount of this Agreement in connection with the Debt Financing. Except for Equity Financing and available cash of Parent and its Subsidiaries and the Fee Letters Company and the Company Subsidiaries)) and customary engagement letters and fee credit letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount amount required to satisfy the Financing Uses (after taking into account the amount of the Equity Financing and available cash of Parent and its Subsidiaries and the Company and the Company Subsidiaries) or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or other arrangements of any kind relating to the Debt Commitment Letter to which Parent or Merger Sub is a party that impose conditions to, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to the Company prior to the date hereof. As of the date hereof, Parent has fully paid any and all commitment or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof and Parent will continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Closing Date. As of the date hereof, each of the Equity Financing Commitments, in the form so delivered, is in full force and effect, and is a legal, valid and binding obligation of the parties thereto, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles. As of the date hereof, each of the Debt Financing Commitments, in the form so delivered, is in full force and effect and is a legal, valid and binding obligation of Parent or Merger Sub, as the case may be, and, to the Knowledge of Parent, each of the other parties thereto, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles. As of the date hereof, no party to any Financing Commitment has notified Parent or Merger Sub of its Affiliates is a partyintention to terminate the Financing Commitment or not to provide the Financing. There are no conditions precedent or other contingencies related to the funding or investing, as applicable, of the full amount of the Financing, other than as expressly set forth in the Financing LettersCommitments delivered to the Company prior to the date hereof (including any “market flex” provisions applicable to the Financing Commitments). As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of Parent or Merger Sub or, to the Knowledge of Parent, any other party thereto under any term of or condition to any of the Financing Commitments, (ii) constitute a failure to satisfy a condition precedent on the part of Parent or Merger Sub or (iii) result in any portion of the Financing Commitments being unavailable on the Closing Date. As of the date hereof, assuming the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Merger, Parent has no reason to believe that it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it pursuant to the Financing Commitments or that the full amount of the Financing will not be made available to Parent on the Closing Date if the conditions thereto are satisfied. Subject to the terms and conditions of the Financing Commitments, and subject to the terms and conditions of this Agreement, assuming the Financing is funded and/or invested in accordance with the Financing Commitments, Parent and Merger Sub will have on the Closing Date sufficient funds to (A) pay the Aggregate Merger Consideration and the other payments under ARTICLE IV, (B) pay any and all fees and expenses required to be paid by Parent, Merger Sub and the Surviving Corporation in connection with the Merger and the Financing, (C) pay for any refinancing of any outstanding indebtedness of the Company and/or the Company Subsidiaries contemplated by this Agreement or the Financing Commitments) in full, including all fees and expenses related thereto and (D) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder (clauses (A) through (D), collectively, the “Financing Uses”). Each of Parent and Merger Sub affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Parent or Merger Sub obtain the Financing related to any of the transactions contemplated hereby.
Appears in 1 contract
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ a) Newco has delivered to the Company complete and accurate copies of executed commitment letters of even date herewith (acollectively, the “Equity Commitment Letter”) from the Sponsors pursuant to which the Sponsors have committed to provide, subject only to the terms and conditions expressly set forth therein, equity financing for the transactions contemplated by this Agreement in the aggregate amount set forth therein (the “Equity Financing”). The Equity Commitment Letter provides that the Company is a correct third-party beneficiary thereof and is entitled to enforce such agreement, and that Newco and the Sponsors have waived any defenses to the enforceability of such third party beneficiary rights, in each case, subject only to the express terms and conditions thereof. The Equity Commitment Letter, in the form so delivered to the Company, is in full force and effect and is a legal, valid and binding obligation of Newco and the Sponsors, enforceable against the parties thereto in accordance with its terms, subject to the Enforceability Limitations. Notwithstanding anything to the contrary, the Equity Commitment Letter may be specifically enforced against the Sponsors.
(b) Newco has delivered to the Company complete fully executed copy and accurate copies of the debt executed commitment letter, dated as letter of even date herewith, and the executed engagement letter and fee letters (including all any “flex” provisions) related thereto of even date herewith (except that the fee amounts, pricing caps and other economic terms, none of which would adversely affect the amount, conditionality, availability or termination of the Debt Financing to be funded at the Closing, set forth therein have been redacted), together with any related exhibits, schedules, annexes annexes, supplements and amendments to such letter in effect as of the date of this Agreement term sheets (as may be amended or modified in accordance with the terms hereofcollectively, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Equity Commitment Letter, the “Financing Commitment Letters”) ), pursuant to which the lender parties thereto (which may be redacted to remove together with their respective Affiliates and their respective officers, employees, directors, equityholders, partners, controlling parties, advisors, agents and representatives and their successors and assigns, the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionalitySources”) have committed to provide, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions ofset forth therein, debt financing for the Debt Commitment Letter, Merger and other transactions contemplated by this Agreement in the lender thereunder has committed to lend the amounts aggregate amount set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing” and together with the Equity Financing, the “Financing”). As of the date hereof, neither the Any reference in this Agreement to (i) “Equity Commitment Letter,” “Debt Commitment Letter nor Letters” or “Financing Commitment Letters” will include such documents as amended or modified in compliance with the provisions of Section 7.3, and (ii) the “Financing” will include the financing contemplated by the Financing Commitment Letters as amended or modified in compliance with the provisions of Section 7.3. Newco has fully paid any Fee Letter has and all commitment fees or other fees that have been amended, restated or otherwise modified or waived incurred and are due and payable in connection with the Financing Commitment Letters prior to or in connection with the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained . The Debt Commitment Letters in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior form so delivered to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is Company are in full force and effect and constitutes the are legal, valid and binding obligation obligations of Parent Newco and, to the Knowledge knowledge of ParentNewco, each of the other parties thereto, enforceable against the parties thereto in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties theretotheir terms, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersEnforceability Limitations.
Appears in 1 contract
Sources: Merger Agreement (Informatica Corp)
Financing. At Parent has delivered to the ClosingCompany true, assuming the funding correct and complete copies, as of the Debt date of this Agreement, of (i) an executed commitment letter (the “Equity Funding Letters”) from each of Insight Venture Partners VII, L.P., Insight Venture Partners (Cayman) VII, L.P., Insight Venture Partners (Co-Investors) VII, L.P., Insight Venture Partners (Delaware) VII, L.P. and Insight Venture Partners Coinvestment Fund II, L.P. (collectively, the “Equity Providers” and each an “Equity Provider”) to each provide, in each case subject only to the conditions precedent expressly set forth therein (the “Equity Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discountConditions”), Parent will have immediately available funds equity financing in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of set forth therein (being collectively referred to as the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement“Equity Financing”), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (ii) an executed rollover commitment letter (the “Required AmountRollover Letter”). As of the date hereof, ) from ▇▇▇▇▇▇▇ has delivered ▇. ▇▇▇▇▇, the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Annuity Trust 2010-1, the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Annuity Trust 2010-2, and the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Annuity Trust 2011-1 (collectively, the “Rollover Investors”) to contribute to Parent, subject only to the conditions precedent expressly set forth therein (the “Rollover Investment Conditions”), the amount of Company Common Stock expressly set forth therein (athe “Rollover Investment”) and (iii) an executed commitment letter and forms of fee letters, redacted only to remove the fees payable to a correct financing source, “market flex” provisions and complete fully executed copy “securities demand” provisions (none of which would adversely affect the amount or availability of the Debt Financing or the conditions precedent to the Debt Financing), from the financial institutions identified therein (the “Debt Commitment Letter” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject only to the conditions precedent set forth therein (the “Debt Financing Conditions”, and together with the Equity Financing Conditions collectively referred to as the “Financing Conditions”), debt commitment letterfinancing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, dated and together with the Equity Financing collectively referred to as of even date herewith, including all exhibits, schedules, annexes the “Financing”). The Financing Letters and amendments to such letter the Rollover Letter are in full force and effect as of the date of this Agreement (as may be amended or modified in accordance with and are legal, valid and binding obligations of Parent and, to the terms hereofknowledge of Parent, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter)parties hereto. As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each none of the other parties thereto, enforceable Financing Letters or the Rollover Letter has been amended or modified and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Assuming (i) the Financing is funded in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy Equity Funding Letters and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth applicable, (ii) the contribution contemplated by the Rollover Letter is made in accordance with the Debt Commitment Letter. Assuming terms of the satisfaction of Rollover Letter and (iii) the conditions set forth in Section 6.01 6.2(a) and 6.02Section 6.2(b) are satisfied, the net proceeds of contemplated by the Equity Funding Letters and Debt Financing Commitment Letter will, together with the Company’s available cash, in the aggregate be sufficient for Merger Sub and together the Surviving Corporation to pay the aggregate Merger Consideration and Designated Consideration and any other amounts required to be paid by Parent, Merger Sub and the Company in connection with the consummation of the Transactions and to pay all related fees and expenses. Parent or Merger Sub has fully paid any cash and all commitment fees or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to fees in connection with the Financing Letters, including after giving effect Letters and the Rollover Letter that are payable on or prior to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) and Parent represents that any other fees that are due under the Financing Letters and the Rollover Letter are required to be paid no earlier than the Closing or the termination of this Agreement. No event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent oror Merger Sub under the Financing Letters or the Rollover Letter; provided that in making the representations and warranties in this sentence, to Parent is assuming that the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account 6.2(a) will be satisfied as of the Marketing PeriodEffective Time. As of the date of this Agreement, neither Parent does not have nor Merger Sub has any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent or Merger Sub on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of the Closing or that any of the conditions to the contribution contemplated in the Rollover Letter will not be satisfied or that the contribution contemplated by the Rollover Letter will not be made to Parent on or before the date of the Closing; provided that in making the representations and warranties in this Agreement sentence, Parent is assuming that the condition set forth in Section 6.2(a) will be satisfied as of the Effective Time. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein, and the Rollover Letter contains all of the conditions precedent to the obligations of the parties thereunder to make the contribution to Parent described therein. Other than as set forth in Section 4.5 of the Parent Disclosure Letter, and other than a customary engagement letter and an administration fee letter to be entered into in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt that do not add any additional Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing)Conditions, as of the date hereof, there are no side letters or and (except for the Financing Letters and the Rollover Letter) there are no other agreements, contracts or arrangements arrangements, whether written or oral, with any lender or any other Person, related to the financing or investing, as applicable, of any kind relating to amount of the Debt Commitment Letter to which Parent or any of its Affiliates is a partyFinancing, other than as expressly set forth in the Financing LettersConditions, any amount of the contribution contemplated by the Rollover Letter or the Rollover Investment Conditions.
Appears in 1 contract
Financing. At Investor has delivered to the ClosingCompany true, assuming complete and correct copies of: (i) the executed commitment letter, dated as of the date hereof by and among Deutsche Bank AG New York Branch, Deutsche Bank AG Cayman Islands Branch, Deutsche Bank Securities Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Barclays Bank PLC, Citigroup Global Markets Inc., Credit Suisse AG, Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇▇ Sachs Bank USA, UBS Securities LLC, and UBS Loan Finance LLC and Investor (the “Debt Financing Commitment”), pursuant to which, upon the terms and subject to the conditions set forth therein, Deutsche Bank AG New York Branch, Deutsche Bank AG Cayman Islands Branch, Morgan Stanley Senior Funding, Inc., Barclays Bank PLC, Citigroup Global Markets Inc., Credit Suisse AG, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA, and UBS Loan Finance LLC have agreed to lend the amounts set forth therein to the Company for the purpose of funding the transactions contemplated by this Agreement (the “Debt Financing”); (ii) the executed equity commitment letter, dated as of the date hereof between Investor and Guarantor (the “Equity Financing Commitment” and together with the Debt Financing Commitment, the “Financing Commitments”), pursuant to which, upon the terms and subject to the conditions set forth therein, Guarantor has committed to invest the cash amount in accordance Investor set forth in its Equity Financing Commitment (the “Equity Financing” and together with the Debt Financing, the “Financing”); and (iii) the fee letter executed in connection with the Debt Financing Commitment (the “Fee Letter”). None of the Financing Commitments or the Fee Letter and after giving effect has been amended or modified prior to any the date of this Agreement (provided that the existence or exercise of the “flex” provision provisions contained in the Debt Commitment Fee Letter shall not constitute an amendment or modification of the related fee letters (including with respect to fees and original issue discountFinancing Commitments), Parent will have immediately available funds in an amount and, as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount date hereof, the respective commitments contained in the Financing Commitments have not been withdrawn, terminated or rescinded in any respect. There are no other agreements, side letters or arrangements to which Investor is a party relating to any of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”)Financing Commitments. As of the date hereof, ▇▇▇▇▇▇ has delivered the Financing Commitments are in full force and effect and constitute the legal, valid and binding obligations of Investor and, to the Company knowledge of Investor, the other parties thereto (a) a correct subject in each case to the effect of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, receivership or similar Laws relating to or affecting creditors rights generally and complete fully executed copy by general equity principles, whether considered in Proceedings in equity or at law). Other than as expressly set forth in the Financing Commitments and the Fee Letter or as set forth in any such documents amended after the date hereof and not in violation of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms provisions hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters there are no conditions precedent related to the Debt Commitment Letter funding of the full net proceeds of the Financing (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of including any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject provisions) under any agreement relating to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed Financing to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”)which Investor or any of its Affiliates is a party. As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, which would constitute a breach or default (or with notice or without notice, lapse of time or both, both would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedentdefault) by Investor under the Financing Commitments, in each case, on the part of Parent or, to the Knowledge knowledge of ParentInvestor, any the other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing DateCommitments. Parent Investor has fully paid (or caused to be paid) fully paid all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect hereof pursuant to the Debt Financing (none of which reduces Commitments. Assuming the amount accuracy of the Debt Financing below representations and warranties set forth in ARTICLE II and performance by ITW, ITW Subsidiary and the Required Amount or adversely affects the conditionalityCompany of their respective obligations hereunder, enforceability, termination or availability upon receipt of the Debt Financing)proceeds contemplated by the Financing Commitments, Investor and the Company will have access as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating Closing to the Debt Commitment Letter sufficient cash funds to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Letterspay all amounts contemplated by this Agreement to be paid by them and to perform their respective obligations hereunder.
Appears in 1 contract
Sources: Investment Agreement
Financing. At Parent has delivered to the Closing, assuming Company true and complete copies of (i) the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including commitment letter with respect to fees and original issue discount)the senior secured credit facilities, Parent will have immediately available funds in an amount dated as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, among Parent, Deutsche Bank AG New York Branch, Deutsche Bank Securities Inc. and G▇▇▇▇▇▇ has delivered S▇▇▇▇ Credit Partners L.P. and the commitment letter with respect to the Company (a) a correct and complete fully executed copy of the debt commitment lettersenior subordinated bridge facility, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement hereof, among Parent, Deutsche Bank AG Cayman Islands Branch and G▇▇▇▇▇▇ Sachs Credit Partners L.P. (as may be amended or modified in accordance with the terms hereofcollectively, the “Debt Commitment LetterFinancing Commitments”) and (b) a copy of any fee letters related ), pursuant to which the Debt Commitment Letter (the “Fee Letters” andlenders party thereto committed, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions ofthereof, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As , and (ii) the equity Table of Contents commitment letters, dated as of the date hereof, neither from (A) Istithmar , (B) Whitehall Street Global Real Estate Limited Partnership 2▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ International Real Estate Limited Partnership 2▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Global Employee Fund 2005, L.P. and Whitehall Street International Employee Fund 2005 (Delaware), L.P., (C) Colony Investors VII L.P. , (D) Providence Equity Offshore Partners V L.P. and (E) The Related Companies, L.P. (the “Equity Financing Commitments” and together with the Debt Commitment Letter nor any Fee Letter has been amendedFinancing Commitments, restated or otherwise modified or waived prior the “Financing Commitments”), pursuant to which such parties have committed, subject to the execution terms thereof, to invest the cash amounts set forth therein (the “Equity Financing” and delivery together with the Debt Financing, the “Financing”). Prior to the date of this Agreement, no amendment(i) none of the Financing Commitments has been amended or modified, restatement or other modification is contemplated and (ii) the respective commitments contained in the Debt Commitment Letter Financing Commitments have not been withdrawn, rescinded, amended, restated withdrawn or otherwise modified rescinded in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter)respect. As of the date of this Agreement, the Debt Commitment Letter is Financing Commitments are in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exceptioneffect. There are no The only conditions precedent to the obligation obligations of the lenders and other Persons committing pursuant to the Financing Commitments to make the Debt Financing available to Parent pursuant to or its Affiliates are those contemplated by the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction terms of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required AmountCommitments. As of the date hereof, assuming the accuracy of this Agreementthe Company’s representations and warranties contained herein, (i) no neither Parent, Merger Sub nor any direct investor in Parent has any knowledge that any event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, Merger Sub or any other parties thereto direct investor in Parent under any term or condition of the Debt Commitment LetterFinancing Commitments or otherwise be reasonably likely to result in any portion of the Financing contemplated thereby to be unavailable. As of the date hereof, and (ii) assuming the satisfaction or waiver accuracy of the conditions set forth Company’s representations and warranties contained herein, neither Parent, Merger Sub nor any of the direct investors in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have has any reason to believe that it will be unable to satisfy on a timely basis any of the conditions term or condition to the Debt Financing will not be satisfied or that by it and contained in the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing DateCommitments. Parent has Parent, Merger Sub and their respective Affiliates have fully paid (or caused to be paid) any and all commitment fees or other fees to required by the extent required terms of the Financing Commitments to be paid on or prior to before the date of this Agreement in connection with Agreement. Assuming the Debt Financing. Except accuracy of the Company’s representations and warranties contained herein, the proceeds from the Financing constitute all of the financing required to be provided by Parent for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount consummation of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or Merger and other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Letterstransactions contemplated by this Agreement.
Appears in 1 contract
Financing. At (a) Assuming the Closing, assuming the funding satisfaction of the Debt conditions to Purchaser’s obligation to consummate the Acquisition, the amount of funds to be provided pursuant to the Financing Letters, if funded in accordance with the terms of the Financing Letters, will be sufficient at the Closing to (i) pay the Purchase Price and any other repayment or refinancing of Indebtedness required by the Financing Letters or required as a result of the consummation of the Contemplated Transactions, and (ii) pay any and all fees and expenses, and satisfy all other payment obligations, required to be paid or satisfied by Purchaser.
(b) Purchaser has delivered to Clorox Parent a true, complete and correct copy of (i) the executed commitment letter, dated as of the date hereof (the “Equity Financing Letter”), between Purchaser and Guarantor, pursuant to which Guarantor has committed, subject to the terms and conditions thereof, to invest in Purchaser the cash amounts set forth therein (the “Equity Financing”), and (ii) the executed commitment letter, dated as of the date hereof, among Purchaser, JPMorgan Chase Bank, N.A. and ▇.▇. ▇▇▇▇▇▇ Securities LLC (the “Lenders”, and such commitment letter, “Debt Commitment Letter”, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the counterparties thereto have committed, subject to the terms and conditions thereof, to lend the amount set forth therein (the “Debt Financing” and, together with the Equity Financing, the “Financing”). Purchaser has also delivered to Clorox Parent a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter and after giving effect (it being understood that any such Fee Letter provided to Clorox Parent may be redacted to omit the numerical fee amounts provided therein) (any such Fee Letter, a “flex” provision in the Debt Commitment Letter or the related fee letters Fee Letter”).
(including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation c) As of the aggregate date hereof, the Financing Letters are in full force and effect. The Financing Letters contain no conditions precedent, or other contractual contingencies as between Purchaser and any other party to the Financing Letters, related to the funding of the full amount of the Merger ConsiderationFinancing, other amounts payable pursuant to Article II (including all amounts payable than as set forth in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation Financing Letters and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”)related Fee Letter. As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of ParentPurchaser, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to Purchaser or any of the Knowledge of Parent, any other parties thereto thereto, under any term or condition the Financing Letters. As of the Debt Commitment Letterdate hereof, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any Purchaser has no reason to believe that any of the conditions to the Debt Financing contemplated in the Financing Letters and any related Fee Letter will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be made available to Parent on Purchaser at or prior to the Closing Datetime contemplated hereunder for Closing. Parent There are no side letters or other contracts or arrangements related to the Financing other than the Financing Letters and any related Fee Letter. As of the date hereof, Purchaser has fully paid (paid, or caused to be fully paid) , any and all commitment fees or other fees to the extent required to be paid which are due and payable on or prior to the date hereof pursuant to the terms of this Agreement in connection with the Debt Financing. Except for the Fee Financing Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Lettersrelated Fee Letter.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Armored AutoGroup Inc.)
Financing. At the Closing, assuming the funding of the Debt Debtor in Possession Financing in accordance The Debtors shall be provided with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions debtor-in-possession financing (the “Required AmountDIP Facilities”). As ) consisting of one or more of the date hereof, ▇▇▇▇▇▇ has delivered to the Company following: (a) a correct and complete fully executed copy of super-priority, secured, debtor-in-possession revolving credit facility (the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to “DIP Revolving Facility”) provided by the ABL Lenders (in such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereofcapacity, the “Debt Commitment LetterDIP Revolving Lenders”) and (b) a copy of any fee letters related to the Debt Commitment Letter super-priority, secured, debtor-in-possession term loan facility (the “Fee Letters” andDIP Term Facility”) provided by one or more of the Term Lenders (in such capacity, the “DIP Term Lenders”, and together with the Debt Commitment LetterDIP Revolving Lenders, the “Financing LettersDIP Lenders”). The DIP Facilities, and all borrowings thereunder, shall be subject to a budget updated monthly (with weekly cash reporting) and approved by the DIP Lenders. The terms and conditions of the DIP Facilities shall be acceptable to the Supporting Noteholders and the Debtors, acting reasonably and in good faith. Plan Funding The Reorganized Debtors shall be funded on effective date of the Plan (the “Effective Date”) (which may be redacted to remove by the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount proceeds of the Debt Financing below Rights Offering (as defined below) and, if necessary, the Required Amount or adversely affect the conditionality, enforceability, termination or availability Exit Facility (as defined below). The proceeds of the Debt Financing). Pursuant toRights Offering and Exit Facility shall be in an aggregate amount which shall be sufficient to fund required distributions under the Plan, and including to pay in full all outstanding amounts under the DIP Facilities (subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As conversion of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior DIP Term Loans to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated New Common Stock as described below) and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, ABL Facility on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Effective Date. Parent has fully paid (or caused Rights Offering Pursuant to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement and in connection with the Debt Financing. Except for consummation of the Fee Letters and customary engagement letters with respect Restructuring Transactions, following confirmation of the Plan, the Company will distribute rights (the “Rights”) to the Debt Financing holders of 2021 Note claims against the Debtors and holders of 2018 Note claims against the Badlands (none DE) Debtor that will permit such the holders thereof to acquire, in the aggregate, $150 million of which reduces New Common Stock (the amount “Rights Offering”). The New Common Stock issued in connection with the Rights Offering will be sold at a total enterprise valuation of the Debt Reorganized Debtors on the Effective Date of $350 million (the “Plan Value”). The Rights shall be exercisable prior to the Effective Date. Exit Financing below To the Required Amount extent necessary after the Rights Offering, the Reorganized Debtors shall be funded on the Effective Date by a new first lien, senior secured exit facility (the “Exit Facility”), which Exit Facility shall be in form and substance acceptable to the Supporting Noteholders. The Debtors and the Supporting Noteholders will work in good faith to source and execute on the Exit Facility, which can be in the form of an asset backed revolver, term loan or adversely affects combination thereof. The Term Loan Lenders shall provide a standby commitment to fund the conditionalityExit Facility. Such Term Loan Lenders shall be paid a six percent (6%) fee, enforceability, termination payable in cash and or availability New Common Stock at the election of the Debt Financing)Term Loan Lenders, as of in connection with the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing LettersExit Facility Commitment.
Appears in 1 contract
Sources: Restructuring Support Agreement (Nuverra Environmental Solutions, Inc.)
Financing. At (a) Parent has received and accepted, and delivered to the ClosingCompany true, assuming correct and complete copies of, (i) the funding fully executed debt commitment letter and redacted fee letter (of which only the Debt Financing in accordance with the Debt Commitment Letter fee amounts, pricing and after giving effect to any economic components of “flex” provision in terms have been redacted; provided that any such redacted terms do not affect the conditionality of or reduce (below the Required Amount) the amount of cash proceeds available to Parent and Merger Subsidiary), each dated as of the Agreement Date (the “Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discountLetters”), Parent will have immediately available funds in an amount as is necessary to consummate from the Transactionsagents, including the payment by Parentarrangers, Merger Sub managers, lenders and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II entities party thereto (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and collectively with any other amountsagents, including Indebtedness of arrangers, managers, lenders and other entities from time to time party thereto and such Persons’ Affiliates, successors and assigns, the Company and “Debt Financing Sources”) confirming their respective commitments to provide Parent (or its Subsidiaries, required to be paid Affiliate) with debt financing in connection with, or as a result of, the consummation of with the Transactions (the “Required AmountDebt Financing”) and (ii) fully executed equity commitment letters (the “Equity Commitment Letters,” and together with the Debt Commitment Letters, the “Financing Commitment Letters”) from each of the parties listed on Annex I hereto (the “Equity Financing Sources” and together with the Debt Financing Sources, the “Financing Sources”) confirming the respective counterparties’ commitments to provide Parent (or its Affiliate) with equity financing in an amount up to the aggregate amount set forth therein in connection with the Transactions (the “Equity Financing,” and together with the Debt Financing, the “Financing”). As Assuming (x) that the Financing contemplated by the Financing Commitment Letters is fully funded on the terms set forth therein and (y) the satisfaction of the date hereofconditions to Parent’s and Merger Subsidiary’s obligations to consummate the Transactions as set in Article VI, ▇▇▇▇▇▇ has delivered to and Merger Subsidiary will have, when taken together with available cash of the Parent and Merger Subsidiary and $225,000,000 of available cash of the Company (a) a correct and complete fully executed copy Company Subsidiaries, funds sufficient at the Closing to pay the aggregate Merger Consideration upon the terms contemplated by this Agreement, consummate the Merger and pay all related fees and expenses of Parent, Merger Subsidiary and their respective Representatives required to be paid in connection with the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments Closing pursuant to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereofsuch required funds, collectively, the “Debt Commitment LetterRequired Amount”) and ).
(b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount Each of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Equity Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter Letters is in full force and effect and constitutes is a valid and binding obligation of Parent and Merger Subsidiary and the legalother parties thereto (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity). The Company is a third-party beneficiary of the Equity Commitment Letters on the terms set forth therein. Each of the Debt Commitment Letters is in full force and effect and is a valid and binding obligation of Parent and, to the Knowledge knowledge of Parent, each of the other parties theretothereto (subject to applicable bankruptcy, enforceable insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity). Parent or Merger Subsidiary has fully paid, or caused to be paid, any and all commitment or other fees in accordance connection with its terms against Parent and, the Financing Commitment Letters that are payable on or prior to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required AmountAgreement Date. As of the date Agreement Date, none of this Agreementthe Financing Commitment Letters have been amended or modified in any respect, no such amendment or modification is contemplated (iother than any such amendment or modification permitted by Section 5.9(a)) and the respective commitments contained therein have not been withdrawn, rescinded or otherwise modified in any respect. As of the Agreement Date, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or Merger Subsidiary or, to the Knowledge knowledge of Parent, any other parties party thereto under any Financing Commitment Letter. There are no conditions precedent to the funding of the full amount of the Financing other than the conditions precedent set forth in the Financing Commitment Letters delivered to the Company, and, as of the Agreement Date, Parent has no reason to believe that any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver closing of the conditions set forth in Section 6.01 and Section 6.02 and taking into account Financing that is required to be satisfied will not be satisfied, or that the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be made available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt FinancingClosing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there There are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter Contracts to which Parent or any of its Affiliates is a partyparty related to the funding or investing, as applicable, of the full amount of the Financing that could adversely affect the availability of the Financing on the Closing Date other than as expressly set forth in the Financing Commitment Letters.
Appears in 1 contract
Sources: Merger Agreement (SolarWinds Corp)
Financing. At Parent has delivered to the ClosingCompany true and complete copies of (a) the commitment letter, assuming dated as of August 15, 2013, between Parent and Merger Sub and GCI Capital Markets LLC (the "Debt Financing Commitments"), pursuant to which GCI Capital Markets LLC has committed to lend, subject only to the terms and conditions set forth therein, the amounts set forth therein (the "Debt Financing") for the purpose of funding the transactions contemplated by this Agreement and (b) the equity commitment letter, dated as of August 15, 2013 between Parent and Aurora Pacific Equity Partners. Inc. (the "Equity Financing Commitments" and together with the Debt Financing in accordance Commitments, the "Financing Commitments"), pursuant to which Aurora Pacific Equity Partners, Inc. has committed to invest, subject solely to the terms and conditions set forth therein, the amount set forth therein (the "Equity Financing" and, together with the Debt Commitment Letter Financing, the "Financing"). The aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Financing Commitments, together with cash and after giving effect cash equivalents available to any “flex” provision Parent, will, in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount)aggregate, be sufficient for Parent will have immediately available funds in an amount as is necessary to consummate the TransactionsMerger, including to pay the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the total Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable repay or refinance in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including full existing Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to the Company (a) a correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement (as may be amended or modified Subsidiaries in accordance with the terms hereofPayoff Letters, to pay the “Debt Commitment Letter”) fees and (b) a copy expenses incurred in connection with the transactions contemplated hereby, and to provide for the working capital needs of any fee letters related the Surviving Corporation following the Effective Time. The Financing Commitments, in the forms provided to the Debt Commitment Letter (the “Fee Letters” andCompany, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). As of the date hereof, neither the Debt Commitment Letter nor any Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid valid, binding and binding obligation enforceable obligations of Parent and, to the Knowledge knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and Equity Exceptionother similar laws relating to or affecting creditors' rights generally and general equitable principles (whether considered in a proceeding in equity or at law). None of the Financing Commitments has been amended or modified prior to the Agreement Date, except as consistent with Section 7.3. As of the Agreement Date, the Financing Commitments are in full force and effect and have not been withdrawn or rescinded in any respect. There are no conditions precedent or contingencies, whether oral or written, related to the obligation to make funding of the Debt Financing available to Parent pursuant to full amount of the Debt Commitment LetterFinancing, other than as expressly set forth in the Debt Commitment LetterFinancing Commitments. Assuming As of the Agreement Date, no event has occurred which would result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both would become a default) by Parent under the Financing Commitments, and, assuming the satisfaction of the conditions set forth in Section 6.01 Sections 8.1 and 6.028.2, the net proceeds as of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and (ii) assuming the satisfaction or waiver of the conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing PeriodAgreement Date, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other than as expressly set forth in the Financing Letters.
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Sources: Merger Agreement (National Technical Systems Inc /Ca/)