Financing. (a) Subject to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter.
Appears in 3 contracts
Samples: Agreement and Plans of Merger (Colony Capital, Inc.), Agreement and Plans of Merger (Barrack Thomas Jr), Agreement and Plans of Merger (Northstar Realty Finance Corp.)
Financing. (a) Subject to The Buyer shall, and shall cause the terms and conditions other members of this Agreementthe Buyer Group to, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain obtain, or cause to be obtained, and to consummate, the Committed proceeds of the Debt Financing on or prior to the Closing Date on the terms and conditions set forth described in the Debt Financing Commitment, including with respect to: (i) maintaining in effect the Debt Financing Commitment and complying with all obligations thereunder; (ii) negotiating, executing and delivering definitive agreements with respect to the Debt Financing (the “Debt Financing Agreements”) on terms no less favorable than, and otherwise consistent with, the terms and conditions contained therein; and (iii) satisfying on a timely basis all conditions in the Debt Financing Commitment applicable to the Buyer’s obligations thereunder and complying with the terms thereof; provided that this covenant shall not require the Buyer to commence any Action against any of the other parties to the Debt Financing Commitment or the definitive documentation for the Debt Financing, if any, with respect thereto. In the event that all conditions contained in the Debt Commitment Letter have been satisfied (or upon funding will be satisfied), the Buyer shall cause the Debt Financing Sources to fund the Debt Financing, but in no event will the Buyer be required to do so prior to the time the Closing is required to occur under the terms of this Agreement. In the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter, including using the Buyer shall use its reasonable best efforts to: (i) maintain in effect to arrange to obtain as promptly as practicable, on terms that are not less favorable to the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute Buyer than the Debt Financing Documents on terms contained contemplated by such Debt Commitment Letters, as applicable, alternative sources of financing in an amount sufficient, when added to the portion of the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy Financing that is available and the Buyer’s cash on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letterhand, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources Transactions and the pay any other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be amounts required to be pay paid in connection with the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis consummation of the status of its efforts Transactions and those of its Subsidiaries to arrange pay all related fees and consummate the Committed expenses (“Alternative Debt Financing. Constellation shall not permit or agree”) and to obtain, and shall cause its Subsidiaries not to permit or agreeand, when obtained, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement provide the Company with a copy of, any of the Debt Commitment Letter if a new financing commitment that provides for such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Alternative Debt Financing (or satisfaction of the financing conditions in “Alternative Debt Financing Commitment Letter”). For the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions purposes of this Section 6.15(a) and (B) Agreement, the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any terms “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter.
Appears in 3 contracts
Samples: Sale and Purchase Agreement (P10, Inc.), Sale and Purchase Agreement (P10, Inc.), Sale and Purchase Agreement (P10, Inc.)
Financing. (a) Subject At the cost and expense of the Merger Sub, the Company shall use commercially reasonable efforts to cooperate and assist Merger Sub with respect to the terms and conditions of this Agreement, Constellation shall take, or cause Financing (as defined in Section 6.7). The Company agrees to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agreeprovide, and shall cause its Subsidiaries and its and their representatives to provide on a timely basis, all reasonable cooperation in connection with the arrangement of the Debt Financing as may be requested by Parent (provided, that such requested cooperation does not to permit or agreeunreasonably interfere with the ongoing operations of the Company and its Subsidiaries), to any terminationincluding (i) participation in meetings, amendment or modification to drafting sessions and due diligence sessions, (ii) furnishing Parent and its financing sources with financial and other pertinent information regarding the Company as may be made toreasonably requested by Parent, or any waiver including all financial statements and financial data of any provision underthe type required by Regulation S-X and Regulation S-K under the Securities Act, or any replacement of, (iii) assisting Parent and its financing sources in the preparation of (A) an offering document for any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) materials for rating agency presentations, (iv) reasonably cooperating with the parties marketing efforts of Parent and its financing sources for any of the Debt Financing and (v) providing and executing documents as may be reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactionsrequested by Parent, including paying a certificate of the Debt Payoff Amount and chief financial officer of the transaction expenses Company or any of all parties; provided further that Constellation shall not be deemed its Subsidiaries with respect to have violated this Section 6.15(a) if with solvency matters, comfort letters of accountants, consents of accountants for use of their reports in any materials relating to the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, surveys and (ii) for title insurance; provided, that none of the avoidance Company or any of doubt, neither the existence nor the exercise of its Subsidiaries shall be required to pay any “flex” provision commitment or other similar fee or incur any other liability in connection with the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver prior to the Other Parties copies of any such terminationEffective Time. All non-public or otherwise confidential information regarding the Company obtained by Parent or its representatives pursuant to this Section 4.4 shall be kept confidential in accordance with the Confidentiality Agreement; provided, amendment, modification, waiver or replacement, including any Replacement Committed that Parent and its representatives shall be permitted to disclose information as necessary and consistent with customary practices in connection with the Debt Financing. Without limiting Parent shall promptly upon request by the foregoing, Constellation shall, Company reimburse the Company for all Expenses incurred by the Company and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties Subsidiaries in writing, to the extent consistent connection with the Debt Commitment Lettersuch cooperation.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Party City Corp), Agreement and Plan of Merger (Amscan Holdings Inc)
Financing. (a) Subject Parent and the Purchaser shall use their commercially reasonable efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth described in the Debt Commitment Letter, including using commercially reasonable best efforts to: to (ia) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute enter into definitive agreements with respect to the Debt Financing Documents on the terms contained and conditions reflected in the Debt Commitment Letter or on other terms reasonably acceptable to Parent and the Purchaser, (including any “flex” provisions related thereto); (iiib) satisfy on a timely basisbasis all material conditions applicable to Parent and the Purchaser in such definitive agreements that are within their control, (c) consummate the Debt Financing at such time or obtain a waiver offrom time to time as is necessary for Purchaser to satisfy its obligations under this Agreement (d) enforce its rights under the Debt Commitment Letter; provided, any however, that Parent or Purchaser shall have the right to substitute alternative financing conditions in for the Debt Commitment Letter with a different letter or a letter from alternative lenders so long as such substitute letter is subject to financing conditions that are within Constellation’s control (but excluding any condition where the failure at least as favorable to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information Parent and Purchaser as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate . In the Committed Debt Financing at or prior to the Closing, including to cause event any portion of the Debt Financing Sources becomes unavailable on the terms and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions contemplated in the Debt Commitment Letter that are in Constellation’s control) for any reason, Parent and the Purchaser shall use their commercially reasonable efforts to obtain alternative financing on the Closing Date or (y) adversely impact the ability of Constellation terms no less favorable to enforce its rights against other parties to Purchaser than the Debt Commitment Letter or Financing from alternative sources (“Alternative Financing”) as promptly as practicable following the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties occurrence of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other such event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for . For the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision Parent’s and the Debt Commitment Letter may be amended Purchaser’s obligation to add additional Debt Financing Sources. Constellation shall promptly deliver to consummate the Other Parties copies of any such terminationOffer, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, Merger and the other transactions contemplated by this Agreement are not (and shall cause its applicable Subsidiary to, take all actions required not be) subject to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letterany financing condition.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Beckman Coulter Inc), Agreement and Plan of Merger (Biosite Inc)
Financing. (a) Subject GETCO shall use its reasonable best efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessarynecessary to arrange and obtain the proceeds of the Financing (including, proper or advisable if necessary to obtain or cause to be obtained, and to consummateconsummate the transactions contemplated hereby, the Committed “bridge” loans contemplated in the Debt Financing on or prior to the Closing Date Commitment Letter) on the terms and conditions set forth in the Debt Commitment LetterFinancing Letters (or on terms more favorable in the aggregate to GETCO), including using reasonable best efforts tothe execution and delivery of all such instruments and documents as may be reasonably required thereunder. Without limiting the generality of the foregoing, GETCO shall: (i) use its reasonable best efforts to maintain in full force and effect the Debt Commitment Letter Financing Letters in accordance with the terms and comply with its obligations thereundersubject to the conditions set forth therein; (ii) negotiate as promptly as practicable after the date of the Original Merger Agreement, use its reasonable best efforts to negotiate, execute and execute deliver the definitive agreements with respect to the Debt Financing Documents (the “Definitive Financing Agreements”) on the terms and conditions (including the “market flex” terms and conditions) contained in the Debt Commitment Letter Financing Letters or on other terms more favorable in the aggregate to GETCO; provided, however, that in no event shall any of the Definitive Financing Agreements: (including any “flex” provisions related thereto); (iiiA) satisfy on a timely basis, or obtain a waiver of, any financing conditions reduce the aggregate amount of the Debt Financing provided for in the Debt Commitment Letter Financing Letters to an amount that are within Constellation’s control is less than the aggregate amount of Debt Financing sufficient to consummate the transactions contemplated by this Agreement and make the payments referred to in Section 3.27; (but excluding any condition where B) expand the failure conditions or other contingencies to be so satisfied is a direct result of any the receipt or funding of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions Debt Financing beyond those expressly set forth in the Debt Commitment LetterFinancing Letters, amend or modify any of such conditions or other contingencies in a manner adverse to consummate the Committed Debt Financing at GETCO (including by making any such conditions or prior other contingencies less likely to be satisfied) or impose any new or additional condition or other contingency to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis receipt or funding of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (BC) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any contain terms (other provision of than those terms expressly set forth in the Debt Commitment Letter in a manner Financing Letters) that would reasonably be expected to (x1) prevent or delay the Effective Time or prevent the date on which the Debt Financing would be obtained or (2) make the funding of the Committed Debt Financing less likely, in any material respect, to occur; (iii) pay in a timely manner any commitment or satisfaction of the financing conditions in the Debt Commitment Letter other fees that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties become due and payable under or with respect to the Debt Commitment Letter Financing Letters on or following the definitive agreements with respect theretodate of the Original Merger Agreement; provided that (iiv) Constellation shall not be deemed use its reasonable best efforts to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice obtain all rating agency approvals necessary to obtain the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes Debt Financing and to take or any satisfy all other event, fact or circumstance that would be restricted by conditions to obtaining the foregoing provisions of this Section 6.15(a) Debt Financing; and (Bv) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of Financing Letters and the Other Parties in writing, to the extent consistent with the Debt Commitment LetterDefinitive Financing Agreements.
Appears in 2 contracts
Samples: And Restated Agreement and Plan of Merger (Knight Capital Group, Inc.), Amended and Restated Agreement and Plan of Merger (KCG Holdings, Inc.)
Financing. (a) Subject The Company agrees to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agreeprovide, and shall cause its Subsidiaries Representatives to provide, all reasonable cooperation in connection with the arrangement of any financing in connection with the Offer and the Merger (the “Financing”) as may be reasonably requested by Parent (provided that such requested cooperation does not to permit (a) unreasonably interfere with the ongoing operations of the Company and its Subsidiaries, (b) cause any representation or agree, to any termination, amendment or modification warranty in this Agreement to be made tobreached, (c) cause any condition set forth in Article VII or any waiver Tender Offer Condition to fail to be satisfied or otherwise cause any breach of this Agreement or any material agreement to which the Company or any of its Subsidiaries is a party or (d) involve any binding commitment by the Company or its Subsidiaries, other than a commitment that is conditioned on the consummation of the Offer or the Merger and that terminates without Liability to the Company upon the termination of this Agreement), including (i) participation, with reasonable advance notice, in meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with rating agencies, each customary in connection with any Financing, (ii) providing Parent and its underwriters and Financing sources with financial and other pertinent information regarding the Company as may be reasonably requested by Parent, (iii) assisting Parent and its underwriters and Financing sources in the preparation of offering documents, materials for rating agency presentations, private placement memoranda, bank information memoranda, prospectuses, registration statements and similar documents customarily required in connection with any Financing, (iv) subject to Section 6.02 and with reasonable advance notice, permitting Parent and its underwriters and Financing sources to conduct customary due diligence in connection with any Financing, providing Parent and its underwriters and Financing sources, and their respective Representatives, access to management of the Company and the books and records of the Company and its Subsidiaries, (v) providing Parent and its financing sources with financial and other pertinent information regarding the Company as may be reasonably requested by Parent, including all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act as and when such statements to date would otherwise be required to be publicly disclosed by the Company, (vi) using commercially reasonable efforts to obtain necessary and customary pledge and security documents, management representation letters, accountants’ comfort and reliance letters, opinions and consents, surveys and title insurance customarily required in connection with any Financing as reasonably requested by Parent, (vii) providing Parent with the financial statements and related assistance as specifically contemplated by Section 6.12, ,(viii) reasonably cooperating with the marketing efforts of Parent and its Financing sources for any equity, debt or hybrid security financing raised by Parent to complete the Offer or the Merger and (ix) reasonably cooperating with Parent and its Financing sources in connection with the refinancing of any provision under, or any replacement of, any indebtedness of the Debt Commitment Letter if such termination, amendment, modification, waiver Company or replacement (A) reduces (or would have its Subsidiaries that may be required in connection with the effect of reducing) the aggregate amount consummation of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect theretoOffer; provided that (i) Constellation the Company shall not be deemed required to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of pay any termination, amendment, modification, waiver commitment or replacement it other similar fee or its Subsidiaries proposes to take or incur any other eventLiability in connection with such Financing, fact except, in the case of the Company, following the Acceptance Date or circumstance that would be restricted the Effective Time. Parent shall, promptly upon request by the foregoing provisions of this Section 6.15(a) and (B) Company, reimburse the parties reasonably agree that, taking into account Company for all out-of-pocket costs incurred by the Company in connection with such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financingcooperation, and (ii) for Parent shall indemnify and hold harmless the avoidance of doubtCompany, neither the existence nor the exercise of any “flex” provision its directors, officers and Representatives in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any connection with such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Lettercooperation.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Agrium Inc), Agreement and Plan of Merger (Uap Holding Corp)
Financing. (a) Subject to the terms and conditions of this Agreement, Constellation Buyers shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth in the Debt Commitment Letter, including using use their reasonable best efforts to: to (ix) maintain in effect the Debt Commitment Letter Financing Commitments and comply to satisfy the conditions to obtaining the Financing set forth therein (including, without limitation, by funding the equity contemplated by the Equity Financing Commitment), (y) enter into definitive financing agreements with its obligations thereunder; (ii) negotiate and execute respect to the Debt Financing Documents on terms contained in (the "Debt Financing Agreement") so that the Debt Commitment Letter Financing Agreement is in effect as soon as reasonably practicable but in any event no later than the Closing Date and (including any “flex” provisions related thereto); (iiiz) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to Closing. Subject to the Closingsatisfaction or waiver of the conditions to Closing in Article V of this Agreement, including Buyers agree to use the bridge facility contemplated by the Financing Commitments to cause the Debt Financing Sources and the other persons committing Closing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount whichoccur effective as of no later than October 31, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses2004. Constellation Buyers shall keep the Other Parties IR reasonably informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financingfinancing process relating thereto. Constellation shall not permit or agree, and IR shall cause the Sellers and its Subsidiaries not and their respective officers and employees to permit provide such cooperation as may be reasonably requested by Buyers in connection with the Debt Financing and any offering of debt securities privately or agreein a registered offering, to including in connection with the preparation of "bank books", offering materials and similar documents and all other necessary cooperation in connection with the arrangement of any termination, amendment or modification financing to be made to, consummated contemporaneous with or any waiver of any provision under, at or any replacement of, any after the Closing in respect of the Debt Commitment Letter if such terminationtransactions contemplated by this Agreement, amendmentincluding without limitation, modificationparticipation in good faith in meetings, waiver due diligence sessions, road shows, the preparation of offering memoranda, registration statements or replacement (A) reduces (other appropriate disclosure documents and the execution and delivery of underwriting, placement or would have similar agreements, whose effectiveness shall be conditioned on the effect of reducing) the aggregate amount closing of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of transactions contemplated by this Agreement. If necessary in connection with the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter event that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties has not occurred due solely to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties failure of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties conditions to Closing in writingArticle V to be satisfied or capable of being satisfied, and the Debt Financing shall not have been consummated, by November 9, 2004, IR shall provide to the extent consistent Buyers on or prior to such date with an unaudited balance sheet of the Debt Commitment LetterDresser-Rand Group and the Business as of September 30, 2004 and the related unaudited statements of income and cash flows for the nine-month period ended September 30, 2004 (the "September Financial Statements").
Appears in 2 contracts
Samples: Equity Purchase Agreement (Dresser-Rand Group Inc.), Equity Purchase Agreement (Ingersoll Rand Co LTD)
Financing. (a) Subject Parent and Opco shall use commercially reasonable efforts to arrange the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Bank Financing on or prior to the Closing Date on the terms and conditions set forth described in the Debt Commitment Letter, including using commercially reasonable best efforts to: (i) maintain in effect to negotiate definitive agreements with respect thereto on the Debt Commitment Letter terms and comply with its obligations thereunder; conditions contained therein and (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) to satisfy on a timely basis, or obtain a waiver of, any financing basis all conditions applicable to Parent and Opco in the Debt Commitment Letter such definitive agreements that are within Constellation’s the control (but excluding of Parent and Opco. Parent and Opco shall use commercially reasonable efforts to comply with their respective obligations, and enforce their respective rights, under the Commitment Letter. In the event that any condition where portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter, Parent and Opco shall use commercially reasonable efforts to obtain any such portion from alternative sources; provided, however, that in the event that any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter as a result of a failure to be so satisfied is a direct result of satisfy any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in paragraph (e) of Exhibit B to the Debt Commitment Letter, Parent and Opco shall use best efforts to consummate obtain any such portion from alternative sources. Notwithstanding the Committed Debt Financing at or prior foregoing, Parent and Opco shall be under no obligation to obtain any alternative financing unless it can be obtained on substantially similar economic terms (to Parent, Opco and the Equity Investor) as those set forth in the Commitment Letter. Parent shall give the Company prompt notice of any breach by any party to the Closing, including to cause Commitment Letter or any termination of the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expensesCommitment Letter. Constellation Parent shall keep the Other Parties Company informed on a reasonably current basis and in reasonable detail of the status of its efforts and those of its Subsidiaries to arrange the Financing and consummate the Committed Debt Financing. Constellation shall not permit or agreepermit, and shall cause its Subsidiaries not to permit or agreewithout the prior written consent of the Company, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may in each case, which would materially and adversely affect the likelihood that the Financing contemplated thereby will be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letterobtained on a timely basis.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ameripath Inc), Agreement and Plan of Merger (Specialty Laboratories Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, Constellation The Company shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agreeprovide, and shall cause its Subsidiaries not to, and shall use its reasonable best efforts to permit or agreecause their respective Representatives, including legal and accounting Representatives, to provide all cooperation reasonably requested by Parent in connection with the arrangement of the financing by Parent and Surviving Corporation, (provided that such requested cooperation does not (i) unreasonably interfere with the ongoing operations of the Company or any terminationof its Subsidiaries, amendment (ii) cause in and of itself any representation or modification warranty in this Agreement to be made tobreached, (iii) cause any condition to the Closing to fail to be satisfied or otherwise cause any breach of this Agreement or any Material Contract or (iv) involve any binding commitment by the Company or any of its Subsidiaries which commitment is not conditioned on the Closing and does not terminate without liability to the Company and its Subsidiaries upon the termination of this Agreement). Without limiting the generality of the foregoing, such cooperation shall include (i) providing Parent all reasonably requested information, including financial information, (it being understood that the Company shall have no obligation to provide audited financial statements other than those prepared in the ordinary course) and making available from time to time upon reasonable notice appropriate officers of the Company and the Subsidiaries for meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) assisting with the preparation of pro forma financial statements, other financial forecasts, and other materials reasonably requested by Parent for rating agency presentations, offering documents, bank information memoranda and similar documents required in connection with the financing, provided that, any such memoranda or prospectuses shall contain disclosure and financial statements with respect to the Company or the Surviving Corporation reflecting the Surviving Corporation and its Subsidiaries as the obligors, (iii) executing and delivering any pledge and security documents, other definitive financing documents, or any waiver other certificates, legal opinions or documents as may be reasonably requested by Parent (including a certificate of any provision under, the chief financial officer of the Company or any replacement ofSubsidiary with respect to solvency matters and consents of accountants for use of their reports in any materials relating to the financing) and otherwise reasonably facilitating the pledging of collateral, any of the Debt Commitment Letter if such termination(iv) using reasonable best efforts to obtain accountants’ comfort letters, amendmentlegal opinions, modificationsurvey and title insurance as reasonably requested by Parent, waiver or replacement (v) taking all other actions reasonably necessary to (A) reduces (or would have permit the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter prospective lenders involved in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in to evaluate the Debt Commitment Letter that are in ConstellationCompany’s control) on current assets, cash management and accounting systems, policies and procedures relating thereto for the Closing Date or (y) adversely impact the ability purpose of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) establishing collateral arrangements and (B) the parties reasonably agree that, taking into establish bank and other accounts and blocked account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount agreements and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if lock box arrangements in connection with the approval of Polaris and Siriusforegoing, not (vi) using reasonable best efforts to be unreasonably withheld, Constellation shall, enter into one or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financingmore credit or other agreements on terms satisfactory to Parent in connection with the financing immediately prior to the Effective Time, and (iivii) for taking all corporate actions, subject to the avoidance occurrence of doubtthe Closing, neither reasonably requested by Parent to permit the existence nor consummation of the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision financing and the Debt Commitment Letter may direct borrowing or incurrence of all of the proceeds of the financing by the Surviving Corporation immediately following the Effective Time; provided that none of the Company or any of its Subsidiaries shall be amended required to add additional Debt Financing Sources. Constellation shall promptly deliver pay any commitment or other similar fee or incur any other liability prior to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterEffective Time.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Us 1 Industries Inc), Agreement and Plan of Merger (Us 1 Industries Inc)
Financing. The Purchaser represents that the Purchaser is capable of obtaining such mortgage financing as the Purchaser requires to enable the Purchaser to pay the balance due on the Closing Date (athe “Purchaser’s Financing”) Subject or does not require any financing to complete the terms and conditions purchase. Within ten (10) days after the acceptance of this Agreement, Constellation the Purchaser shall takedeliver to the Vendor satisfactory evidence that the Purchaser is pre-approved for Purchaser’s Financing by a bank, trust company or cause other financial institution. The Purchaser shall also deliver to be takenthe Vendor not later than fifteen (15) days prior to Closing Date a mortgage commitment from a bank, all actions and trust company or other financial institution which evidences that the Purchaser has been approved for Purchaser’s Financing. Alternatively, the Purchaser shall deliver to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtainedthe Vendor within ten (10) days after the acceptance of this Agreement, and to consummate, the Committed Debt Financing on or again not later than fifteen (15) days prior to the Closing Date on Date, satisfactory evidence from a bank, trust company or other financial institution, indicating that the terms Purchaser has sufficient funds and conditions set forth is able to close this transaction without registering a mortgage against the Land. If the Vendor determines in its sole and unfettered discretion that the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect evidence provided to it is insufficient for the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute purposes of closing the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date Date, the Purchaser shall deliver a mortgage commitment from a bank, trust company or other financial institution evidencing that the Purchaser has been approved for Purchaser’s Financing within ten (y10) adversely impact days of request by the ability Vendor. Witness Initial: Purchaser Initial: Vendor Initial: The failure of Constellation the Purchaser to enforce its rights against other parties to comply with the Debt Commitment Letter or above-noted provisions shall constitute a default under this Agreement in which event the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation Vendor shall have (A) provided prior the right to terminate this Agreement by written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it Purchaser or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account solicitors. Upon such termination, amendment, modification, waiver the Deposit shall be forfeited as liquidated damages and not as penalty and without prejudice to Vendor’s right to recover from the Purchaser all additional losses and damages which the Vendor may suffer or replacement, New Polaris will incur as a result of such default. The Vendor shall have at no obligation to consent to any extension of the Closing funds available to it Date that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended requested by the Purchaser by reason of the Purchaser’s failure or inability to add additional Debt Financing Sourcesobtain Purchaser’s Financing. Constellation In the event the Vendor, in its sole, absolute and unfettered discretion, consents to any such request for an extension of the Closing Date (the “Extended Closing Date”), such consent, if granted, shall promptly deliver be subject to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter.following conditions:
Appears in 2 contracts
Samples: Agreement of Purchase and Sale, Agreement of Purchase and Sale
Financing. (a) Subject Buyer shall use its reasonable best efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, as promptly as possible, all things necessary, proper advisable or desirable to (i) satisfy on a timely basis all terms, conditions, representations and warranties applicable to Buyer set forth in the Commitment Letters (including any flex provisions) (or, if deemed advisable by Buyer, seek a waiver of conditions applicable to obtain Buyer contained in the Commitment Letters) (and, for the avoidance of doubt, this clause (i) shall have no effect where the failure to satisfy such terms, conditions, representations and warranties results directly from the Sellers’ failure to furnish the Required Information or breach of their obligations hereunder in a manner that would cause the condition in Section 10.2 not to be obtainedsatisfied), (ii) maintain in effect the Commitment Letters through the Closing Date (as such may be amended, supplemented, modified and to consummatereplaced in accordance with the terms hereof), the Committed (iii) negotiate and enter into Debt Financing on or Documents and enforce its rights under the Debt Commitment Letters (other than pursuant to any Action taken prior to the Closing Date satisfaction or waiver of the conditions set forth in Article X and Article XI hereunder) and (iv) upon satisfaction of the conditions set forth in the Commitment Letters, consummate the Financing at the Closing; provided, however, that, if all or any portion of funds in the amounts and on the terms set forth in the Debt Commitment Letters become, or would be reasonably expected to become, unavailable to Buyer on the terms and conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter therein (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied and such portion is a direct result of any of the Other Parties’ failure to furnish information as reasonably required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount whichtransactions contemplated by this Agreement and all fees, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required expenses and other amounts contemplated to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit paid (or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification caused to be made topaid) by Buyer pursuant to this Agreement, or any waiver in each case other than as a result of a breach by Sellers of any provision underrepresentation, warranty or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter covenant contained in this agreement in a manner that would reasonably be expected to (x) delay or prevent cause the funding of the Committed Debt Financing (or satisfaction of the financing conditions in Section 10.1 or Section 10.2 not to be satisfied, Buyer shall use its reasonable best efforts to obtain substitute alternative financing (the “Alternative Financing”) for all or such portion of such funds to the extent so unavailable, (i) in amounts and otherwise on terms and conditions no less favorable to Buyer than as set forth in the applicable Debt Commitment Letter and (ii) that are in Constellation’s control) does not expand upon the conditions precedent or contingencies to funding the Financing on the Closing Date or (y) adversely impact as set forth in the ability of Constellation to enforce its rights against other parties to the applicable Debt Commitment Letter or the definitive agreements Debt Financing Documents with respect theretoto the Alternative Financing; provided that (i) Constellation provided, further, that, if Buyer proceeds with Alternative Financing, it shall not be deemed subject to have violated the same obligations with respect to such Alternative Financing as set forth in this Section 6.15(a) if Constellation shall have (A) provided prior written notice 8.5 as with respect to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for . For the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver references to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the “Debt Commitment Letter, including ” shall include such document as may be directed permitted or required by one or more this Section 8.5 for such Alternative Financing from the time of the Other Parties in writing, to the extent consistent with the Debt Commitment Lettersuch substitution.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Sears Holdings Corp), Asset Purchase Agreement (Esl Partners, L.P.)
Financing. The Company shall provide, and shall cause its subsidiaries and the Company Representatives to provide, all reasonable cooperation in connection with the arrangement of any financing to be obtained by Parent and its affiliates or the Surviving Corporation in connection with the Transactions (the “Financing”) including, without limitation, (a) Subject promptly providing to Parent’s financing sources all material financial information in their possession with respect to the terms Company and conditions of this Agreementthe Transactions as reasonably requested by Parent or Parent’s financing sources, Constellation including, but not limited to, information and projections prepared by the Company relating to the Company and the Transactions, provided such financing sources shall take, or cause be deemed to be takenone of Parent’s “representatives” under the Confidentiality Agreement and subject to all obligations imposed therein upon a “representative,” (b) making the Company’s senior officers and other Company Representatives reasonably available to Parent’s financing sources in connection with such Financing, all actions to reasonably participate in due diligence sessions and to doreasonably participate in presentations related to the Financing, including, without limitation, presentations to rating agencies and (c) reasonably assisting in the preparation of one or cause more appropriate offering documents and assisting Parent’s financing sources in preparing other appropriate marketing materials, in each case to be done, all things necessary, proper used in connection with the Financing. The Company shall provide the same cooperation at Parent’s request in connection with any sale-leaseback or advisable similar transaction with respect to obtain or cause to real property owned by the Company (it being understood that any such transaction would not be obtained, and to consummate, the Committed Debt Financing on or consummated prior to the Closing Date on without the terms mutual agreement of the Company and conditions set forth in the Debt Commitment Letter, including using Parent). Each of Parent and Merger Sub shall use commercially reasonable best efforts to: to (i) maintain fully satisfy in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy all material respects, on a timely basis, or obtain a waiver ofall terms, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions conditions, representations and warranties set forth in the Debt Commitment Letter, Letters and (ii) enforce their respective rights under the Commitment Letters. Each of Parent and Merger Sub shall use commercially reasonable efforts to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the enter into definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties financings contemplated by the Commitment Letters on terms and conditions no less favorable than the Commitment Letters as soon as reasonably practicable but in any event at the Effective Time. Parent will furnish correct and complete copies of such executed definitive agreements to the Company promptly upon request by the Company. At the Company’s request, Parent shall keep the Company informed with respect to all material activity concerning the status of the financings contemplated by the Commitment Letters and shall give the Company prompt notice of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes material change with respect to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financingfinancings. Without limiting the foregoing, Constellation shallParent agrees to notify the Company promptly if at any time prior to the Effective Time (i) the Commitment Letters shall expire or be terminated for any reason or (ii) any financing source that is a party to the Commitment Letters notifies Parent that such source no longer intends to either provide or underwrite financing to Parent on the terms set forth therein or requests amendments or waivers which are materially adverse to the timely completion by Parent or Merger Sub of the transactions contemplated by this Agreement. Neither Parent nor Merger Sub shall amend or alter, or agree to amend or alter, the Commitment Letters in any manner that would materially and shall cause its applicable Subsidiary toadversely impair, take all actions required to enforce its rights under delay beyond the timing contemplated in this Agreement for the consummation of the transactions contemplated by this Agreement or prevent the consummation of the transactions contemplated by this Agreement without the prior written consent of the Company. If either the Debt Commitment LetterLetter or Equity Commitment Letter shall be terminated or modified in a manner materially adverse to Parent or Merger Sub for any reason, including Parent shall use commercially reasonable efforts to (i) obtain, and, if obtained, will provide the Company with a copy of, a new financing commitment that provides for at least the same amount of financing as may be directed contemplated by one or more of the Other Parties in writing, Commitment Letters as originally issued; (ii) enter into definitive agreements with respect to such new financing; and (iii) obtain funds under such agreements to the extent consistent necessary to consummate the transactions contemplated by this Agreement; provided that Parent shall be under no obligation to obtain or seek to obtain any financing commitment containing terms or funding conditions less favorable to Parent or its affiliates than those included in the Commitment Letters (as determined in Parent’s good faith and reasonable discretion). In the event that new Commitment Letters are executed in accordance with this Section 5.14, then such new Commitment Letters shall be the Debt “Commitment LetterLetters” for purposes of this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Datastream Systems Inc), Agreement and Plan of Merger (Magellan Holdings, Inc.)
Financing. (a) Subject Each of Parent and Merger Sub shall use, and cause its Affiliates to the terms and conditions of this Agreementuse, Constellation shall its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions described in the Financing Commitments, including using (and causing their Affiliates to use) their respective reasonable best efforts to (i) satisfy, or cause their Representatives to satisfy, on a timely basis all conditions applicable to Parent, Merger Sub or their Representatives in the Financing Commitments, (ii) cause the lenders and any other Persons providing the Debt Financing (“Debt Financing Sources”) to fund the Debt Financing at the Effective Time and (iii) subject to the terms and conditions of the Equity Commitment Letter, cause the Equity Financing to be funded at the Effective Time. In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Parent and Merger Sub shall use their respective reasonable best efforts to arrange and obtain, as promptly as practicable following the occurrence of such event, alternative financing from alternative sources, on terms not in the aggregate less favorable to Parent and Merger Sub (and their Affiliates) than those set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain Financing Commitments as in effect on the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute date of this Agreement, in an amount sufficient, when added to the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any portion of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment LetterFinancing that is available, to consummate the Committed Debt Financing at or prior transactions contemplated by this Agreement (the “Alternative Financing”); provided, that, notwithstanding anything to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing contrary in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit this Section 6.8 or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies in any other provision of the Debt Commitment Letter this Agreement, in a manner that would reasonably no event shall Parent or Merger Sub be expected required to (x) delay amend or prevent the funding waive any of the Committed Debt Financing (terms or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation hereof. Parent shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties Company as promptly as practicable (and no later than two (2) Business Days) after such execution, true and complete copies of all agreements or other arrangements pursuant to which any such termination, amendment, modification, waiver or replacement, including alternative sources shall have committed to provide any Replacement Committed Debt Financing. Without limiting such Alternative Financing (the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter“Alternative Financing Agreements”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Zhongpin Inc.), Agreement and Plan of Merger (Zhongpin Inc.)
Financing. Prior to the Closing, the Sellers shall use their reasonable best efforts to provide in a timely manner to the Buyer or its Financing Sources, and shall use their reasonable best efforts to cause their senior management and representatives, including legal and accounting representatives, to provide to the Buyer, in each case at the Buyer’s sole expense, all cooperation reasonably requested by the Buyer or its Financing Sources that is necessary in connection with the arrangement of any financing to be obtained by the Buyer in connection with any debt financing that the Buyer may elect to pursue in connection with the transactions contemplated by this Agreement (the “Financing“), including (a) Subject furnishing the Buyer and its Financing Sources as promptly as practicable with financial and other pertinent information regarding the Sellers as may be reasonably requested by the Buyer or its Financing Sources and that is customary for financings similar to the terms Financing; (b) participating in a reasonable number of meetings in connection with the Financing; (c) delivery of customary authorization letters, confirmations and conditions undertakings; (d) preparation and delivery as promptly as practicable to the Buyer and its Financing Sources of this Agreementthe information and deliverables required in connection with the Financing; (e) requesting that their independent accountants cooperate with the Financing; and (f) facilitating the pledging of collateral (including obtaining any payoff letters and other cooperation in connection with the repayment or requirement of existing indebtedness and the release and termination of any and all related Liens); provided, Constellation that nothing herein shall takerequire such cooperation to the extent it would interfere unreasonably with the business or operations of the Sellers. The Sellers shall not be required to take any action that would subject them to actual or potential liability, to bear any cost or cause expense (other than reasonable out-of-pocket costs) or to be taken, all actions and pay any commitment or other similar fee or make any other payment or incur any other liability or provide or agree to do, provide any indemnity in connection with the Financing or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, any of the Committed Debt Financing on or foregoing prior to the Closing Date on the terms and conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterDate.
Appears in 2 contracts
Samples: Asset Purchase Agreement (KAR Auction Services, Inc.), Asset Purchase Agreement (KAR Auction Services, Inc.)
Financing. (a) Subject The Purchaser and Finance Merger Sub: (i) shall use reasonable best efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to and the Closing Date Equity Financing on the terms and conditions set forth (including flex provisions) described in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunderthe Fee Letter and the Equity Commitment Letters, respectively, to the extent necessary to consummate the Contemplated Transactions, including seeking to enforce the terms of the Equity Commitment Letters; provided, however, that in no event shall the Purchaser and Finance Merger Sub be required to initiate any Action to cause any Committed Lender to fund the Debt Financing; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or consent to any waiver of any provision or remedy under, or any replacement of, any of the Debt Commitment Letter, the Fee Letter or any Definitive Debt Agreement, in each case, if such termination, amendment, modification, consent or waiver or replacement (Ax) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or Financing below an amount, together with any available cash of the Purchaser and Finance Merger Sub, required to pay the Required Payment Amount, (By) imposes any new or additional conditions to the Debt Financing or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise adversely expands, amends or modifies any other provision of the Debt Commitment Letter, the Fee Letter or such Definitive Debt Agreement (including, without limitation, the Debt Financing Conditions), in a manner that would reasonably be expected to prevent or materially delay the Closing, or (xz) delay or prevent adversely impacts the funding ability of the Purchaser and Finance Merger Sub to enforce its rights prior to Closing against the Committed Lenders or any other party to the Debt Financing (Commitment Letter, the Fee Letter or satisfaction of any Definitive Debt Agreement to timely consummate the financing conditions in Contemplated Transactions; provided, that the Purchaser and Finance Merger Sub may amend the Debt Commitment Letter that are in Constellation’s control) on the Closing Date to add lenders, lead arrangers, bookrunners, syndication agents or (y) adversely impact the ability of Constellation to enforce its rights against other parties to similar entities who have not executed the Debt Commitment Letter or as of the definitive agreements with respect theretodate hereof; provided that the aggregate principal amount of the Debt Financing is not reduced as a result of such amendment unless, contemporaneously with such amendment, the Equity Commitment Letters are amended to increase the commitments thereunder in respect of the Equity Financing by an amount equal to such reduction in the committed Debt Financing; (iiii) Constellation shall not permit any amendment or modification to be deemed made to, or consent to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties any waiver of any terminationprovision or remedy under, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(aEquity Commitment Letters; (iv) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shallpermit, or shall cause its applicable Subsidiary consent to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance assignment of doubt, neither the existence nor the exercise of any “flex” provision in rights or obligations under the Debt Commitment Letter other than as explicitly permitted pursuant to the proviso to clause (ii) above; and (v) shall constitute not permit, or consent to, any assignment of rights or obligations under the Equity Commitment Letters; provided, that any Sponsor may allocate all or a breach portion of this provision its obligations to fund the Commitment Amount (as defined in the applicable Equity Commitment Letter) to an Affiliate (as defined in the applicable Equity Commitment Letter) or to an entity sponsored, co-sponsored, managed by or advised by an Affiliate (as defined in the applicable Equity Commitment Letter) of such Sponsor, but without such allocation relieving or otherwise diminishing the obligation of such Sponsor to fund the Commitment Amount in full; and provided, further, that any such allocation shall not relieve such Sponsor of its obligations under the Debt applicable Equity Commitment Letter may be amended to add additional Debt Financing Sourcesfund such Sponsor’s entire Commitment Amount (as defined in the applicable Equity Commitment Letter) except to the extent the entire Commitment Amount (prior to giving effect to such allocation and without giving effect to any amount funded under any other Equity Commitment Letter) is funded to the Purchaser in accordance with the terms of such Equity Commitment Letter. Constellation The Purchaser shall promptly deliver to the Other Parties Company copies of any such termination, amendment, modification, waiver consent or replacementwaiver. For purposes of this Agreement, including any Replacement Committed references to “Financing” or “Debt Financing. Without limiting ,” as applicable, shall include the foregoingfinancing contemplated by the Commitment Letters as permitted to be amended, Constellation shallmodified or waived by this Section 7.07(a), and shall cause its applicable Subsidiary to, take all actions required references to enforce its rights under the “Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, ” shall include such documents to the extent consistent with the Debt Commitment Letteramended, modified or waived as permitted by this Section 7.07(a).
Appears in 2 contracts
Samples: Equity Purchase Agreement (NorthStar Healthcare Income, Inc.), Equity Purchase Agreement (Griffin-American Healthcare REIT III, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, Constellation Xxxxxx shall use its reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, consummate the Committed Debt ABL Financing on or prior to the Closing Date on the terms and conditions set forth described in the Debt Commitment LetterLetter (including any “market flex” provisions applicable thereto), including using reasonable best efforts to: to (i) maintain in effect negotiate definitive agreements (such definitive agreements being referred to as the Debt Commitment Letter “Financing Agreements”) with respect thereto on the terms and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms conditions contained in the Debt Commitment Letter (including any “market flex” provisions related applicable thereto); ) in all material respects, or, if available, on other terms more favorable (iiitaken as a whole) to Holdco, (ii) satisfy on a timely basis, basis or obtain a the waiver of, any financing of all conditions applicable to Holdco and the other parties in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate (iii) maintain in full force and effect the Committed Debt Financing at or prior Commitment Letter and the Fee Letters in accordance with the respective terms thereof (including paying, as the same shall become due and payable, all fees and other amounts that become due and payable under the Commitment Letter and the Fee Letters to the Closingextent constituting a condition precedent to the funding of the ABL Financing under the Commitment Letter); provided that amendments, including supplements and other modifications to cause the Debt Financing Sources Commitment Letter and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount Fee Letters that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall could not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (xA) delay or prevent make less likely the funding of the Committed Debt ABL Financing (or satisfaction of the financing conditions in to the Debt Commitment Letter that are in Constellation’s controlABL Financing), (B) on adversely affect the Closing Date ability of the parties to timely consummate the Mergers and the other transactions contemplated by this Agreement or (yC) adversely impact the ability of Constellation Xxxxxx or Holdco to enforce its rights against the agents, arrangers, lenders and other parties entities that have committed to provide or arrange or otherwise entered into agreements in connection with all or any part of the Debt Financing (the “Financing Sources”), shall be permitted, and (iv) take such actions as are reasonably necessary to enforce Xxxxxx’x rights under the Commitment Letter or in the definitive agreements with respect thereto; provided event of a breach by the Financing Sources that (i) Constellation shall not could reasonably be deemed expected to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice delay or make less likely the funding of the Financing (or satisfaction of the conditions to the Other Parties of any terminationABL Financing), amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) adversely impact the parties reasonably agree thatability of Xxxxxx, taking into account such termination, amendment, modification, waiver Xxxxxx or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required Holdco to enforce its rights under against the Debt Commitment Letter, including as may be directed by one Financing Sources or more (C) adversely affect the ability of the Other Parties in writing, parties to timely consummate the extent consistent with Mergers and the Debt Commitment Letterother transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Superior Energy Services Inc), Agreement and Plan of Merger (Forbes Energy Services Ltd.)
Financing. (a) Subject Each of Holdco, Parent and Merger Sub shall use its reasonable best efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain or cause the Financing on the terms and conditions described in the Financing Commitments, including by (i) maintaining in effect the Financing Commitments, (ii) satisfying on a timely basis all conditions applicable to be obtainedHoldco, Parent and Merger Sub in the Financing Commitments that are within their control, including without limitation paying when due all commitment fees and other fees arising under the Financing Commitments as and when they become due and payable thereunder, and to consummate, (iii) consummating the Committed Debt financing contemplated by the Financing on Commitments at or prior to the Closing Date Effective Time. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter, (x) Holdco, Parent and Merger Sub shall promptly notify the Company and (y) Holdco, Parent and Merger Sub shall use their reasonable best efforts to arrange and obtain alternative financing from alternative sources in an amount sufficient to consummate the Transactions with terms and conditions that are not less favorable in any material respect (as determined by Parent) than the terms and conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: Letter as promptly as practicable following the occurrence of such event (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute “Alternative Financing”). If any Parent Party becomes aware of the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result existence of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at fact or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner event that would reasonably be expected to (x) delay or prevent cause the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) to become unavailable on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted terms and conditions contemplated by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one Holdco, Parent and Merger Sub shall use their reasonable best efforts to either cure or more eliminate such fact or event, or to arrange and obtain the Alternative Financing. The Parent Parties shall promptly provide a true and complete copy of the Other Parties in writing, each alternative financing agreement (together with a redacted copy of any related fee letter) to the extent consistent with the Debt Commitment LetterCompany.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Chuanwei Zhang), Agreement and Plan of Merger (China Ming Yang Wind Power Group LTD)
Financing. (a) Subject GETCO shall use its reasonable best efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessarynecessary to arrange and obtain the proceeds of the Financing (including, proper or advisable if necessary to obtain or cause to be obtained, and to consummateconsummate the transactions contemplated hereby, the Committed “bridge” loans contemplated in the Debt Financing on or prior to the Closing Date Commitment Letter) on the terms and conditions set forth in the Debt Commitment LetterFinancing Letters (or on terms more favorable in the aggregate to GETCO), including using reasonable best efforts tothe execution and delivery of all such instruments and documents as may be reasonably required thereunder. Without limiting the generality of the foregoing, GETCO shall: (i) use its reasonable best efforts to maintain in full force and effect the Debt Commitment Letter Financing Letters in accordance with the terms and comply with its obligations thereundersubject to the conditions set forth therein; (ii) negotiate as promptly as practicable after the date of this Agreement, use its reasonable best efforts to negotiate, execute and execute deliver the definitive agreements with respect to the Debt Financing Documents (the “Definitive Financing Agreements”) on the terms and conditions (including the “market flex” terms and conditions) contained in the Debt Commitment Letter Financing Letters or on other terms more favorable in the aggregate to GETCO; provided, however, that in no event shall any of the Definitive Financing Agreements: (including any “flex” provisions related thereto); (iiiA) satisfy on a timely basis, or obtain a waiver of, any financing conditions reduce the aggregate amount of the Debt Financing provided for in the Debt Commitment Letter Financing Letters to an amount that are within Constellation’s control is less than the aggregate amount of Debt Financing sufficient to consummate the transactions contemplated by this Agreement and make the payments referred to in Section 3.27; (but excluding any condition where B) expand the failure conditions or other contingencies to be so satisfied is a direct result of any the receipt or funding of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions Debt Financing beyond those expressly set forth in the Debt Commitment LetterFinancing Letters, amend or modify any of such conditions or other contingencies in a manner adverse to consummate the Committed Debt Financing at GETCO (including by making any such conditions or prior other contingencies less likely to be satisfied) or impose any new or additional condition or other contingency to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis receipt or funding of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (BC) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any contain terms (other provision of than those terms expressly set forth in the Debt Commitment Letter in a manner Financing Letters) that would reasonably be expected to (x1) prevent or delay the Effective Time or prevent the date on which the Debt Financing would be obtained or (2) make the funding of the Committed Debt Financing less likely, in any material respect, to occur; (iii) pay in a timely manner any commitment or satisfaction of the financing conditions in the Debt Commitment Letter other fees that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties become due and payable under or with respect to the Debt Commitment Letter Financing Letters on or following the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions date of this Section 6.15(aAgreement; (iv) use its reasonable best efforts to obtain all rating agency approvals necessary to obtain the Debt Financing and to satisfy all other conditions to obtaining the Debt Financing; and (Bv) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of Financing Letters and the Other Parties in writing, to the extent consistent with the Debt Commitment LetterDefinitive Financing Agreements.
Appears in 2 contracts
Samples: Voting and Support Agreement (GETCO Holding Company, LLC), Registration Rights Agreement (Knight Capital Group, Inc.)
Financing. (a) Subject Parent shall use its reasonable best efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth described in the Debt Commitment Letter, including using reasonable best efforts to: to (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; Letter, (ii) negotiate and execute the Debt Financing Documents definitive agreements with respect thereto on terms contained in and conditions contemplated by the Debt Commitment Letter (including any “flex” provisions related thereto); or on terms which would not reasonably be expected to delay or prevent the Closing or make the funding of the Financing less likely to occur) and execute and deliver to the Company a copy thereof concurrently with such execution, (iii) satisfy on a timely basis, or obtain a waiver of, any financing basis all conditions in the Debt Commitment Letter and the definitive agreements for the Financing that are within ConstellationParent’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); and comply with its obligations thereunder and (iv) upon satisfaction enforce its rights under the Commitment Letter in the event of a breach by the Financing Sources that impedes or materially delays Closing, including seeking specific performance of the financing parties thereunder. In the event that all conditions to the Financing Sources’ obligations under the Commitment Letter have been satisfied or, upon funding will be satisfied, Parent and Merger Sub shall, except where Parent has available to it sufficient funding from any alternative financing, use their reasonable best efforts to cause the Financing Sources to fund on the Closing Date the Financing required to consummate the Merger and the other transactions contemplated by this Agreement (including by taking enforcement action, including seeking specific performance, to cause the Financing Sources to fund such Financing). Parent shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under, the Commitment Letter, provided that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter shall not (A) expand upon the conditions precedent to the Financing as set forth in the Debt Commitment Letter or (B) prevent or impede or materially delay the consummation of the Merger and the other transactions contemplated by this Agreement. Without limiting the obligations of Parent under this Section 6.12 with respect to the Commitment Letter, it is understood and agreed that Parent intends to seek to substitute other financing for the Financing (such as the issuance of the “Notes,” as that term is used in the Commitment Letter) and it is agreed that Parent shall have the right to substitute other debt or equity financing for all or any portion of the Financing from the same or alternative financing sources. If the Financing under the Commitment Letter becomes unavailable in an amount such that Parent and Merger Sub will not be able to satisfy their obligations under this Agreement, Parent shall use its reasonable best efforts to obtain, as promptly as reasonably practicable, alternative financing from alternative financial institutions in an amount sufficient to consummate the Committed Debt Financing at or prior transactions contemplated by this Agreement. Parent shall give the Company prompt written notice of any material breach by any party to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount Commitment Letter or of any condition that would not be required to be pay satisfied, in each case, of which Parent becomes aware or any termination of the Debt Payoff Amount and all transaction expensesCommitment Letter. Constellation Parent shall keep the Other Parties Company informed on a reasonably current prompt basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Clearwater Paper Corp), Agreement and Plan of Merger (Cellu Tissue Holdings, Inc.)
Financing. (a) Subject Parent and Merger Subsidiary shall use their reasonable best efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter Financing and the Financing Commitments, (ii) negotiate and enter into definitive financing agreements with respect to the Financing and Financing Commitments on terms and conditions (including the “flex” provisions) contemplated by the Financing Commitments, so that such agreements are in effect as promptly as practicable after the date hereof but in any event no later than the Acceptance Time, (iii) cause their respective Representatives to cooperate in the preparation of all documents (including offering memoranda, private placement memoranda, prospectuses and road show presentations, if any) and the making of all filings in connection with the Financing and the other transactions contemplated by the Financing Commitments, and in executing and delivering all documents and instruments related to the Financing Commitments, (iv) satisfy on a timely basis all conditions applicable to Parent and Merger Subsidiary in the Financing Commitments that are within its control and comply with its obligations thereunder; , (iiv) negotiate and execute enforce their rights under the Debt Financing Documents on terms contained Commitments in the Debt Commitment Letter event of a breach by the Financing Sources that impedes or delays the consummation of the Financing, including seeking specific performance of the parties thereunder and (including any “flex” provisions related thereto); (iiivi) satisfy on a timely basisotherwise taking, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure causing to be so satisfied is a direct result of any of the Other Parties’ failure taken, all actions and doing, or causing to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letterbe done, all other things necessary, proper or advisable to consummate the Committed Debt Financing at or prior to the Closing, including Acceptance Time. Parent and Merger Subsidiary shall provide to cause the Debt Company copies of all final documents relating to the Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties Company fully informed on a reasonably current basis of material developments in respect of the status of its efforts financing process relating thereto. Prior to the Acceptance Time, Parent and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation Merger Subsidiary shall not permit agree to, or agreepermit, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made toof, or any waiver of any provision under, the Financing Commitments or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions other final documentation relating to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter Financing in a manner that would reasonably be expected to (x) would materially delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions Closing in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date any respect or (y) adversely impact the ability of Constellation to enforce its rights against other parties is otherwise adverse to the Debt Commitment Letter or Company in any material respect, without the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to consent of the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and Company (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter which consent may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause withheld in its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Lettersole discretion).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (DG FastChannel, Inc), Agreement and Plan of Merger (MediaMind Technologies Inc.)
Financing. (a) Subject Each of Parent and Merger Sub shall use its commercially reasonable efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth described in the Debt Commitment Letter, including using commercially reasonable best efforts to: to (iA) maintain in effect the Debt Commitment Letter Letter, (B) satisfy on a timely basis all conditions applicable to Parent and comply with its obligations thereunder; (ii) negotiate and execute Merger Sub to obtaining the Debt Financing Documents that are within their control, (C) negotiate definitive agreements with respect thereto on the terms and conditions contained in the Debt Commitment Letter (including any “flex” provisions related thereto); provisions) and (iiiD) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required enforce their rights under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, . In the event that all the conditions to consummate the Committed Debt Financing at have been satisfied or prior to the Closingwaived, including each of Parent and Merger Sub shall use its commercially reasonable efforts to cause the Debt Financing Sources and lenders providing the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt FinancingOffer on or prior to such time as Merger Sub is required to accept for payment and pay for shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer. Constellation Parent shall not, and shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made Merger Sub to, agree to or permit any waiver amendment, replacement, supplement or other modification of, or waive any of any provision its rights under, or any replacement of, any of the Debt Commitment Letter if or any definitive agreements related to the Debt Commitment Letter (including any and all fee letters), in each case, without the Company’s prior written consent, except any such termination, amendment, modificationreplacement, supplement or other modification to or waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter that amends the Debt Financing in a manner that would not reasonably be expected to (x) prevent or materially impede or delay or prevent the funding consummation of the Committed Debt Financing (Offer, the Merger or satisfaction the other transactions contemplated by this Agreement. Upon any such amendment, replacement, supplement or modification of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements accordance with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to 6.14(a), the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any term “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (King Pharmaceuticals Inc), Agreement and Plan of Merger (Alpharma Inc)
Financing. Not later than the earlier of (ai) Subject the 30th calendar day after the mailing of the Proxy Statement to the stockholders of Parent and the Company and (ii) the date of the earlier of the two Stockholder Meetings, Parent shall enter into one or more definitive financing agreements (the "Definitive Financing Agreements") pursuant to which Parent shall have the right to borrow as of the Closing Date an aggregate amount sufficient to refinance on terms reasonably acceptable to Parent, the Company's senior bank credit facility, the 9 1/2% Senior Subordinated Notes due 2006 and conditions any other indebtedness of this Agreementthe Company, Constellation Parent and its Subsidiaries if (A) as a result of the Merger such indebtedness would be in default (or that with notice of the passage of time or both would be in default) or entitle the holder of such indebtedness to require Parent, the Company or any of their Subsidiaries to repurchase such indebtedness and (B) Parent or the Company shall takenot, as of the Closing Date, have obtained consents, modifications or cause waivers relating to the Merger with respect to such indebtedness. Parent, Sub and the Company shall each use its best efforts to satisfy on the earlier of the date required (if so required) or the Closing Date all requirements of the Definitive Financing Agreements to be takensatisfied or complied with by it thereunder which are conditions to closing thereunder; provided, all actions however, that the Company's obligations under this sentence shall apply only to such requirements which Parent has informed the Company and to do, or cause which the Company consents (not to be doneunreasonably withheld). The Company shall use its best efforts to assist the Parent and Sub, all things necessaryto the extent reasonably requested by them, proper or advisable to obtain or cause to be obtained, in the negotiation and to consummate, preparation of the Committed Debt Definitive Financing Agreements and in effecting such financing on or prior to the Closing Date on the terms and conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterDate.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Mariner Health Group Inc), Agreement and Plan of Merger (Paragon Health Network Inc)
Financing. (a) Subject Parent shall use its reasonable best efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth described in the Debt Commitment Letter, including using reasonable best efforts to: to (i) maintain in effect the Debt Commitment Letter and comply and, if entered into prior to the Closing, the definitive documentation with its obligations thereunder; respect to the Financing contemplated by the Commitment Letter (the “Definitive Agreements”), (ii) negotiate and execute the Debt Financing Documents Definitive Agreements on terms contained in and conditions contemplated by the Debt Commitment Letter (including any “flex” provisions related thereto); (iiithereof) satisfy or on a timely basis, or obtain a waiver of, any financing such other terms and conditions that are in the Debt aggregate, not materially less favorable to Parent than those contained in the Commitment Letter that are within Constellation’s control (but excluding any condition where and do not expand upon the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions precedent set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent make any portion of the funding of the Committed Debt Financing (less likely to be obtained or satisfaction delay in any material respect the funding of the financing Financing and, upon execution thereof, deliver a copy thereof to the Company (which copy shall exclude and/or redact any references to fees contained therein), (iii) satisfy on a timely basis all conditions applicable to Parent and its Subsidiaries in the Debt Commitment Letter and Definitive Agreements that are within its control and comply with its obligations thereunder and not take or fail to take any action that would be reasonably expected to prevent or impede or delay the availability of the Financing, (iv) take each of the actions required of the Company and its Subsidiaries in Constellation’s controlparagraphs (b)(i) through (b)(ix) below with respect to itself and its Subsidiaries, and (v) enforce its rights under the Commitment Letter and Definitive Agreements in the event of a breach by the Financing Sources that impedes or delays the Closing, including by seeking specific performance of the parties thereunder if necessary, unless Parent reasonably concludes that seeking specific performance is impracticable or not reasonably likely to succeed under such circumstances. In the event that all conditions to the Financing have been satisfied, Parent shall use its reasonable best efforts to cause the lenders and the other persons providing such Financing to fund such Financing on the Closing Date Date. Notwithstanding anything to the contrary herein, Parent shall have the right from time to time to amend, replace, supplement or (y) adversely impact the ability otherwise modify, or waive any of Constellation to enforce its rights against under, the Commitment Letter or the Definitive Agreements, including to add additional lenders, agents or other parties to the Debt Commitment Letter and/or the Definitive Agreements, and/or substitute other debt (but not equity financing) for all or any portion of the Financing from the same and/or alternative financing sources, including by electing to utilize its existing senior secured credit facility as a form of alternative financing (subject to obtaining the consent of the Required Lenders (as defined in such credit facility) prior to the consummation of the Merger), provided that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter or Definitive Agreements that amends the definitive agreements with respect thereto; provided that (i) Constellation Financing and/or substitution of all or any portion of the Financing shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice expand upon the conditions precedent to the Other Parties Financing as set forth in the Commitment Letter, (B) prevent or impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement or (C) provide for terms and conditions (including any “flex” provisions) that are, in the aggregate, materially less favorable to Parent than those in the Commitment Letter. Parent shall be permitted to reduce the amount of Financing under the Commitment Letter or Definitive Agreements in its reasonable discretion, provided, that Parent shall not reduce the Financing to an amount committed below the amount that is required, together with the financial resources of Parent, including cash on hand and the proceeds of loans under existing revolving credit facilities of Parent, to consummate the Merger and the other transactions contemplated by this Agreement (including the payment of the Required Refinancing Indebtedness), and provided further that such reduction shall not (I) expand upon the conditions precedent to the Financing as set forth in the Commitment Letter in a manner that would reasonably be expected to make any portion of the funding of the Financing less likely to be obtained or delay in any material respect the funding of the Financing, (II) prevent or impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement, or (III) provide for other terms and conditions (including any “flex” provisions) that are, in the aggregate, materially less favorable to Parent than those in the Commitment Letter. If any portion of the Financing becomes unavailable or Parent becomes aware of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact event or circumstance that would be restricted by makes any portion of the foregoing provisions of this Section 6.15(a) Financing unavailable, in each case, on the terms and (B) conditions contemplated in the parties Commitment Letter and such portion is reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it required to consummate the Transactions, including paying the Debt Payoff Amount Merger and the transaction expenses other transactions contemplated by this Agreement (including the payment of all parties; provided further the Required Refinancing Indebtedness), Parent shall use its best efforts to arrange and obtain as promptly as practicable following the occurrence of such event alternative financing from alternative financing sources in an amount sufficient to consummate the Merger and the other transactions contemplated by this Agreement (including the repayment of the Required Refinancing Indebtedness), provided, that Constellation shall not be deemed to have violated this Section 6.15(a) if with without the approval prior written consent of Polaris and Sirius, the Company (not to be unreasonably withheld), Constellation shall, no such alternative financing (a) shall be equity financing or (b) shall cause its applicable Subsidiary to, negotiate be on terms and execute any Replacement Committed Debt Financing, and conditions (ii) for the avoidance of doubt, neither the existence nor the exercise of including any “flex” provision provisions and conditions to funding) that are not, in the Debt aggregate, at least as favorable to Parent and the Company as those in the Commitment Letter. Parent shall give the Company prompt oral and written notice (but in any event not later than 48 hours after the occurrence) of any material breach by any party to the Commitment Letter shall constitute a breach or Definitive Agreements or of this provision and any condition not likely to be satisfied, in each case, of which Parent becomes aware or any termination or waiver, amendment or other modification of the Debt Commitment Letter may be amended or Definitive Agreements. Parent shall keep the Company reasonably informed on a current basis and in reasonable detail of the status of its effort to add additional Debt arrange the Financing Sources. Constellation and shall promptly deliver provide to the Other Parties Company copies of all documents related to the Financing (excluding fee letters and engagement letters, except to the extent that such documents contain any such termination, amendment, modification, waiver conditions to funding or replacement, including any Replacement Committed Debt Financing“flex” provisions (excluding provisions related solely to fees)). Without limiting In the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required event that Parent commences an enforcement action to enforce its rights under the Debt Commitment LetterLetter or the Definitive Agreements and/or cause the Financing Sources to fund the Financing (any such action, including as may be directed by one or more a “Financing Action”), Parent shall (x) keep the Company reasonably informed of the Other Parties in writingstatus of the Financing Action and (y) at the reasonable request of the Company, shall make Parent’s employees and Representatives (other than any of its Financing Sources) reasonably available to discuss the extent consistent status of, and material developments with respect to, the Debt Commitment LetterFinancing Action.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Silgan Holdings Inc), Agreement and Plan of Merger (Graham Packaging Co Inc.)
Financing. (a) Subject Parent shall use its reasonable best efforts to (a) negotiate definitive agreements with respect to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date Financings on the terms and conditions set forth contemplated by the Financing Commitments or, to the extent the Financing Commitments are not available to Parent, on other terms not materially less favorable, in the Debt Commitment Letteraggregate, including using reasonable best efforts to: to Parent (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained as determined in the Debt Commitment Letter reasonable judgment of Parent) and (including any “flex” provisions related thereto); (iiib) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing basis all conditions set forth in such Financing Commitments applicable to Parent and Merger Sub that are within their control. If any portion of the Debt Financing Commitments becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Parent shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources on terms not materially less favorable, in the aggregate, to Parent (as determined in the reasonable judgment of Parent) as promptly as practicable following the occurrence of such event; provided, that consummating the Financings is not a condition to consummation of the Offer or the Merger and Parent shall draw down each Financing Commitment Letter, in full and without condition in order to consummate the Committed Debt Financing at or prior to Offer and the Closing, including to cause the Debt Financing Sources Merger and the other persons committing transactions contemplated hereby. Parent shall give the Company prompt notice of any material breach by any party to fund the Committed Debt any Financing Commitment, of which Parent becomes aware, or any termination of any Financing Commitment. The Company shall use reasonable efforts to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agreecooperate, and shall to cause its Subsidiaries not and Representatives to permit or agreecooperate, to any terminationwith Parent and Representatives of Parent in connection with obtaining the Financing, amendment or modification to be made toincluding, or any waiver without limitation, participating in the preparation of any provision underpro forma financial statements, or any replacement ofthe preparation of rating agencies presentations, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties preparation of any terminationcomfort letters and offering memoranda and registration statements, amendmentand, modificationat Parent’s request and expense, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if marketing efforts conducted in connection with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterFinancings.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Merge Healthcare Inc), Agreement and Plan of Merger (AMICAS, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agreeThe Company shall, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, use its reasonable best efforts to have its and their representatives, including management, personnel, attorneys, financial advisors, accountants and other professionals, cooperate with Parent and its representatives in connection with the arrangements by Parent and Purchaser to obtain the Financing (or any waiver of any provision under, or any replacement of, any alternative Financing as Parent may obtain) as may be reasonably requested by Parent (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Debt Commitment Letter if such terminationCompany and its Subsidiaries or unreasonably interfere with or hinder or delay in any material aspect the performance by the Company of its other obligations hereunder), amendmentincluding (i) participation in meetings, modificationdrafting sessions and due diligence sessions, waiver or replacement (ii) furnishing Parent and Purchaser and their financing sources with financial and other pertinent information regarding the Company as may be reasonably requested by Parent, (iii) assisting Parent and Purchaser and their financing sources in the preparation of (A) reduces (or would have an offering document for any debt raised to complete the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated transactions contemplated by this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) Agreement and (B) materials for rating agency presentations, (iv) mortgaging or otherwise borrowing money against any Owned Real Property, the parties proceeds of which the Company will hold as cash in furtherance of the Financing and (v) reasonably agree thatfacilitating the pledge of the Company’s assets as collateral; provided, taking into account however, that none of the Company or its Subsidiaries will be required in connection with the Financing or any alternative financing as Parent may obtain or with respect to clauses (iv) and (v) to pay any commitment or other similar fee (unless such terminationcommitment or fee is paid by Parent) or incur any other liability or expense (unless such expense is paid by Parent) that would accrue prior to the Purchase Time or consummate any of the transactions referred to in clauses (iv) and (v) prior to the Purchase Time. Prior to the Purchase Time, amendmentthe Company shall (X), modificationwhen requested by Parent, waiver monetize (at then standard commercial terms at not less than 50% of face value) any auction-rate securities held by the Company or replacement, New Polaris will have its Subsidiaries (Parent and Purchaser hereby acknowledging that the market for such auction-rate securities are illiquid at the Closing funds available to it that are sufficient to enable it to consummate present time) or (Y), if the Transactionsmarket for such auction-rate securities becomes liquid (whereby such securities may be sold at no less than 100% of face value), including paying monetize (at no less than 100% of face value) any auction-rate securities held by the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, Company or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt FinancingSubsidiaries, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter case of (X) or (Y), the proceeds of such monetization shall constitute a breach of this provision and be used by the Debt Commitment Letter may be amended Company solely to add additional Debt Financing Sources. Constellation shall promptly deliver to first, pay at the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting Purchase Time amounts due under the foregoing, Constellation shallTermination Agreements, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writingthereafter, to the extent consistent with of any remaining proceeds, pay the Debt Commitment Letteramounts described in item 1 of Section 4.7(f) of the Disclosure Schedule.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Gsi Group Inc), Agreement and Plan of Merger (Excel Technology Inc)
Financing. (a) Subject Purchaser shall use its reasonable best efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions arrange and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, consummate the Committed Debt Financing on or prior to (or, at the Closing Date option of Purchaser, an equity offering in lieu of any portion of the Debt Financing) on the terms and conditions set forth described in the Debt Commitment LetterFinancing Commitments, including which shall include using its reasonable best efforts to: to (i) maintain in effect the Debt Commitment Letter Financing Commitments and comply with its obligations thereunder; (ii) to negotiate and execute definitive agreements with respect to the Debt Financing Documents on terms that, when taken as a whole, are not materially less favorable, in the aggregate, to Purchaser than those contained in the Debt Commitment Letter Financing Commitments (including any “flex” provisions related applicable thereto); , which terms shall not in any material respect expand on the conditions to the Closing or to the funding at the Closing of the Debt Financing (iiithe “Financing Agreements”), (ii) satisfy on a timely basis, (or obtain a waiver of, any financing ) on a timely basis all conditions in the Debt Commitment Letter Financing Commitments and the Financing Agreements that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth by Purchaser and in the Debt Commitment Letter, its control and necessary to consummate the Committed Debt Financing at or prior to the Closing, (iii) enforce its rights under the Financing Commitments and Financing Agreements, including to cause through litigation pursued in good faith, (iv) consummate the Debt Financing at the Closing, including using reasonable best efforts to (in the event that all conditions in the Financing Commitments are satisfied) cause the Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together and (v) comply with its obligations under the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than Financing Commitments. In the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to event any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any portion of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments (Aincluding any “flex” provisions applicable thereto) reduces (or would have and/or the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt FinancingFinancing Agreements, or otherwise expands, amends Purchaser becomes aware of any event or modifies any other provision of the Debt Commitment Letter in a manner circumstance that would reasonably be expected to (x) delay or prevent the funding make any portion of the Committed Debt Financing (or satisfaction of the financing conditions in unavailable, Purchaser shall use its reasonable best efforts to arrange to obtain promptly, on terms that are not materially less favorable to Purchaser than the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or Financing contemplated by such Financing Commitments (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision provisions applicable thereto) and/or Financing Agreements, as applicable, any such portion from alternative sources in an amount, when added to the portion of the Debt Financing that is available, equal to the amount of Debt Financing committed on the date hereof pursuant to the Financing Commitments (“Alternative Financing”) and to obtain, and, when obtained, to provide Seller with a copy of, a new financing commitment and related fee letter (which fee letter may be redacted as specified in the Debt “Redacted Fee Letter” definition) that provides for such Alternative Financing (the “Alternative Financing Commitment Letter”); provided, that, after giving effect to any such Alternative Financing Commitment Letter shall constitute a breach of this provision and assuming the references therein to the Financing Commitments and Debt Financing are references to the Alternative Financing Commitment Letter may and Alternative Financing, respectively, the representations and warranties of Purchaser set forth in Section 4.5 shall be amended true and correct in all material respects on and as of such date with the same effect as though made on and as of such date. If applicable, other than in the immediately preceding sentence, any reference in this Agreement to add additional “Debt Financing” shall include “Alternative Financing,” any reference to “Financing Commitments” or “Financing Commitment” shall include the “Alternative Financing Commitment Letter,” any references to “Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, ” and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter.“
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (TE Connectivity Ltd.), Stock and Asset Purchase Agreement (CommScope Holding Company, Inc.)
Financing. (a) Subject to the terms Parent shall, and conditions of this Agreementshall cause its Affiliates to, Constellation shall take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessarynecessary to consummate the Financing or any Substitute Financing as promptly as possible following the date hereof, proper or advisable to obtain or cause to be obtainedincluding (i) complying with and maintaining in effect the Commitment Letter, (ii) negotiating and to consummate, the Committed Debt Financing on or prior entering into definitive agreements with respect to the Closing Date on Financing, including the terms and conditions contained in the Commitment Letter so that such agreements are in effect no later than the Offer Closing, (iii) satisfying as soon as possible and on a timely basis all the conditions to the Financing and the definitive agreements related thereto, (iv) accepting to the fullest extent all “market flex” contemplated by the Commitment Letter (or any fee letter relating thereto), to the extent deemed necessary under the Commitment Letter and (v) enforcing its rights under the Commitment Letter in the event of a breach by the Financing Parties that could reasonably be expected to impede or delay the Offer Closing. In the event that all conditions to the Commitment Letter have been satisfied (other than the consummation of the Offer) or, upon funding shall be satisfied, Parent and its Affiliates shall use their reasonable best efforts to cause the Persons providing the Financing (the “Financing Parties”) to fund on the Offer Closing Date the Financing, to the extent the proceeds thereof are required to consummate the Offer, the Merger and the other transactions contemplated hereby (including by taking enforcement action to cause the Financing Parties to fund such Financing if the conditions to funding set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply are satisfied). Parent shall, after obtaining knowledge thereof, give the Company written notice of any (A) breach or default (or any event or circumstance that, with its obligations thereunder; or without notice, lapse of time or both, could reasonably be expected to give rise to any breach or default) by a Financing Party or any party to any definitive document related to the Financing, (iiB) negotiate and execute actual or threatened withdrawal, repudiation or termination of the Debt Financing Documents by the Financing Parties, (C) material dispute or disagreement between or among any parties to the Commitment Letter or any definitive document related to the Financing, (D) amendment or modification of, or waiver under, the Commitment Letter or any related fee letters or (E) change, circumstance or event which causes Parent or Purchaser to believe that it will not be able to timely obtain all or any portion of the Financing on terms contained the terms, in the Debt Commitment Letter (including any “flex” provisions manner or from the Financing Parties or sources contemplated by the definitive documents related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expensesFinancing. Constellation Parent shall keep the Other Parties Company informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing contemplated by the Commitment Letter, including providing copies of all definitive agreements related to the Financing. Constellation Neither Parent nor its Affiliates shall not permit amend, modify, terminate, assign or agree, and shall cause its Subsidiaries not to permit or agree, agree to any termination, amendment or modification to be made to, waiver under the Commitment Letter or any waiver of any provision under, or any replacement of, any related fee letters without the prior written approval of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement Company that would (AI) reduces (or would have the effect of reducing) reduce the aggregate amount of the Committed Debt Financing; Financing (including by increasing the amount of fees to be paid or original issue discount), (BII) imposes impose new or additional conditions or otherwise expandsexpand, amends amend or modifies modify any of the conditions to the receipt of Committed Debt Financing, or otherwise expandsexpand, amends amend or modifies modify any other provision of the Debt Commitment Letter or the related fee letters in a manner that would reasonably be expected to (x1) materially delay or prevent or make less likely the funding of the Committed Debt Financing (or satisfaction of the financing conditions in to the Debt Commitment Letter that are in Constellation’s controlFinancing) on the Offer Closing Date or (y2) materially adversely impact the ability of Constellation Parent or Purchaser, as applicable, to enforce its rights against the Financing Parties or any other parties to the Debt Commitment Letter or the definitive agreements with respect thereto, or (III) make it less likely that the Financing would be funded (including by making the conditions to obtaining the Financing less likely to occur) or otherwise prevent or delay or impair in any material respect the ability or likelihood of Parent to timely consummate the Offer and the Merger and the other transactions contemplated hereby; provided that (i) Constellation notwithstanding the foregoing, Parent may modify, supplement or amend the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as of the date hereof). In the event that new commitment letters are entered into in accordance with any amendment, replacement, supplement or other modification of the Commitment Letter permitted pursuant to this Section 6.17, such new commitment letters shall not be deemed to have violated be a part of the “Financing” and deemed to be the “Commitment Letter” for all purposes of this Section 6.15(a) if Constellation Agreement. Parent shall have (A) provided prior written notice promptly deliver to the Other Parties Company copies of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take of the Commitment Letter or any other event, fact or circumstance that would be restricted by fee letters. If funds in the foregoing provisions of this Section 6.15(a) and (B) amounts set forth in the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shallCommitment Letter, or shall cause its applicable Subsidiary toany portion thereof, negotiate become unavailable, or it becomes reasonably likely that such funds may become unavailable to Parent on the terms and execute any Replacement Committed Debt Financingconditions set forth therein, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation Parent shall, and shall cause its applicable Subsidiary toAffiliates, take all actions required as promptly as practicable following the occurrence of such event to enforce its rights under (x) notify the Debt Company in writing thereof, (y) obtain substitute financing (on terms and conditions that are not materially less favorable to Parent and Purchaser, taken as a whole, than the terms and conditions as set forth in the Commitment Letter, including as may be directed by one or more taking into account any “market flex” provisions thereof) sufficient to enable Parent to consummate the Offer and the Merger and the other transactions contemplated hereby in accordance with its terms (the “Substitute Financing”) and (z) obtain a new financing commitment letter that provides for such Substitute Financing and, promptly after execution thereof, deliver to the Company true, complete and correct copies of the Other Parties new commitment letter and the related fee letters (in writing, redacted form reasonably satisfactory to the extent consistent Persons providing such Substitute Financing removing only the fee information) and related definitive financing documents with respect to such Substitute Financing. Upon obtaining any commitment for any such Substitute Financing, such financing shall be deemed to be a part of the Debt “Financing” and any commitment letter for such Substitute Financing shall be deemed the “Commitment Letter” for all purposes of this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Mens Wearhouse Inc), Agreement and Plan of Merger (Bank Jos a Clothiers Inc /De/)
Financing. Parent and Merger Sub acknowledge and agree that the Company and its Affiliates and its and their respective Representatives shall not (a) Subject to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date Effective Time) have any responsibility for, or incur any liability to any person under, any financing that Parent and Merger Sub may raise in connection with the transactions contemplated by this Agreement or any cooperation provided pursuant to this Section 7.11 and that Parent and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Affiliates and its and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the Equity Financing and Debt Financing and any information utilized in connection therewith. Parent and Merger Sub shall use their respective reasonable best efforts to (i) arrange and consummate the financing on the terms and conditions described in the Commitment Letters (including the exercise of so-called “flex” provisions) as promptly as practicable, including using reasonable best efforts to (x) negotiate and enter into definitive agreements with respect thereto consistent with the terms and conditions contained in the Commitment Letters or on other terms no less favorable, in all material respects to Parent and Merger Sub, and (y) to satisfy on a timely basis all conditions applicable to Parent and Merger Sub in such definitive agreements that are to be satisfied by Parent or Merger Sub and (ii) comply with their obligations under the Commitment Letters. Without limiting the obligations of Parent and Merger Sub pursuant to the immediately preceding sentence, Parent shall prepare and deliver to the Debt Financing Sources on a timely basis taking into account the Marketing Period (1) the Pro Forma Financial Information, (2) all Debt Offering Documents and (3) all necessary materials to obtain the debt ratings contemplated by Section 3 of the Debt Commitment Letter. Each of Parent and Merger Sub shall provide the Company, upon reasonable request, with such information and documentation as shall be reasonably necessary to allow the Company to monitor the progress of such financing activities. In the event that all conditions applicable to the financing commitments have been satisfied, Parent shall use its reasonable best efforts to cause the lenders and the other Persons providing such financing to consummate the transactions contemplated hereby and by the Epicor Merger Agreement on the Closing Date (including by taking enforcement action to cause such lenders and other Persons providing such financing to fund such financing). In the event (x) any portion of the debt financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter and/or (y) Parent is required to pay the Scheduled Acquisition Cost Amount (or a portion thereof) pursuant to the terms of this Agreement, (A) Parent shall use its reasonable best efforts to arrange and to obtain alternative financing from the same or alternative sources on terms no less favorable to Parent than those in the Debt Commitment Letter that such alternative financing would replace (including flex provisions) (the “Alternative Financing”) as promptly as practicable following the occurrence of such event, (B) the term “Commitment Letter” in this Section 7.11 shall be deemed to include any new financing commitment entered into with respect to obtaining such alternative financing and (C) the obligations under this Section 7.11 shall apply equally to any such alternative financing (including any new financing commitment); provided, that Parent shall not be required to seek any Alternative Financing on or after the Outside Date and shall not be required to execute any new debt commitment letter or arrange for such alternative financing on terms and conditions that are less favorable (unless otherwise determined by Parent), in the aggregate, to Parent, Merger Sub or the Surviving Corporation than those included in the Debt Commitment Letter that they would replace. Parent shall promptly notify the Company of any breach that could adversely affect the timely availability of the financing to be provided by the Commitment Letters of which Parent or Merger Sub has become aware by any party to the Commitment Letters or any written proposal by any financing party named in a Commitment Letter to withdraw, repudiate, terminate or make a material change in the terms of (including the amount of financing contemplated by) such Commitment Letter. Neither Parent nor Merger Sub shall, without the prior written consent of the Company, consent to or enter into (a) any amendment, modification, or waiver of any material provision or remedy under, the Debt Commitment Letter (except any amendment, modification or waiver in connection with Parent’s requirement to fund the Scheduled Acquisition Cost Amount pursuant to the terms of this Agreement) if such amendment, modification, waiver or remedy (x) reduces the cash amount of the funding commitments under the Debt Commitment Letter (unless such reduction of the financing commitments under the Debt Commitment Letter is matched with a corresponding equivalent increase of the financing commitment under the Equity Commitment Letter), (y) significantly delays the consummation of the transactions contemplated by this Agreement, or (z) amends, supplements or otherwise modifies the conditions precedent set forth in the Debt Commitment LetterLetter in any manner that is adverse to Parent or the Company or otherwise adversely affects the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreement and/or the Epicor Merger Agreement, including using reasonable best efforts to: (ib) maintain in effect any amendment, modification or waiver of any term of the Debt Equity Commitment Letter (except any amendment that solely increases the amount of the equity financing thereunder without amending or modifying any other term of the Equity Commitment Letter) (actions prohibited by clauses (a) and comply with its obligations thereunder(b), collectively, the “Restricted Commitment Letter Amendments”) or (c) termination of the Commitment Letters; (ii) negotiate provided, however, Parent and execute the Debt Financing Documents on terms contained in Merger Sub may amend the Debt Commitment Letter (including any “flex” provisions related thereto); (iiix) satisfy on a timely basisto add lenders, lead arrangers, bookrunners, syndication agents or obtain a waiver of, any financing conditions in similar entities that had not executed the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any as of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources date hereof and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact in connection with Parent’s obligation (if any) to pay the ability of Constellation Scheduled Acquisition Cost Amount pursuant to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing SourcesAgreement. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation Parent shall, and shall cause its applicable Subsidiary Affiliates to, take use reasonable best efforts to maintain the effectiveness of the Commitment Letters. For the avoidance of doubt, in the event that (x) all actions or any portion of the financing contemplated by the Debt Commitment Letter has not been consummated, and (y) all conditions set forth in Article VIII hereof have been satisfied or waived (other than the conditions set forth in Sections 8.1(b) and 8.2(b) but subject to the satisfaction of such conditions) and the Closing is required to enforce its rights under occur pursuant to Section 2.2, each of Parent and Merger Sub shall cause the proceeds of the bridge facility contemplated by the Debt Commitment Letter to be used to cause the Closing to occur. For the avoidance of doubt, nothing herein shall require, and in no event shall the reasonable best efforts of Parent or Merger Sub be deemed or construed to require, either Parent or Merger Sub to (i) seek equity financing from any source other than those counterparty to, or in excess of that contemplated by the Equity Commitment Letter or (ii) pay any fees in excess of those contemplated by the Debt Commitment Letter, including as may be directed or agree to any “market flex” terms less favorable to Parent, Merger Sub or the Surviving Corporation than such corresponding market flex terms contained or contemplated by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterLetter (in either case, whether to secure waiver of any conditions contained therein or otherwise).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Epicor Software Corp)
Financing. (a) Subject Buyer shall use its Commercially Reasonable Efforts to obtain and effectuate the Financing contemplated by the Financing Commitment and Equity Commitment on substantially the terms set forth therein, including, without limitation, with respect to the Financing Commitment, accepting changes to the pricing, fees, expenses, interest rate or other terms thereof solely on the terms provided therein and, in all cases, subject to the limitations thereon set forth therein, and conditions to keep the Financing Commitment and the Equity Commitment effective in accordance with their respective terms. Buyer shall not amend, or agree to amend, the Financing Commitment in any material respect that would adversely affect the consummation of the transactions contemplated by this Agreement, Constellation without the consent of Seller, which consent shall takenot be unreasonably withheld or delayed. Buyer agrees to notify Seller promptly if, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or at any time prior to the Closing Date on the Financing Commitment or the Equity Commitment shall expire or be terminated for any reason. Buyer shall notify Seller as promptly as practicable of material developments relating to the Financing and the Equity Contribution and shall provide Buyer with copies of the initial drafts of the definitive documentation for the Financing, and, upon request by Seller, Buyer shall provide Seller with information as to the status of the Financing and the Equity Contribution. Buyer will use its Commercially Reasonable Efforts to provide any other drafts or executed copies of definitive documentation to the extent reasonably requested by Seller; provided that, in Buyer's reasonable opinion, the provision of such drafts does not interfere with Buyer's negotiation and timely implementation of the Financing. If the Financing Commitment is terminated for any reason prior to the Closing Date, Buyer shall use Commercially Reasonable Efforts to obtain, and, if so obtained, will provide Seller with a copy of, a new financing commitment that provides for at least the same amount of bank financing as the Financing Commitment as originally issued, funding conditions not less favorable to Buyer than those included in the Financing Commitment as originally issued and other terms and conditions set forth the aggregate effect of which is not materially less favorable to Buyer in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms comparison to those contained in the Debt Financing Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basisas originally issued, or obtain a waiver of, any financing conditions and the representations contained in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result last two sentences of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv4(d) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a5(i) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if apply with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letterrespect thereto.
Appears in 1 contract
Samples: Stock Purchase Agreement (Centennial Communications Corp /De)
Financing. Buyer has provided the Seller a true, complete and correct copy of an executed commitment letter and corresponding customarily redacted fee letter (anone of which redacted terms would reasonably be expected to adversely affect the amount or availability of the Debt Financing) Subject from the financial institutions identified therein (as may be amended or replaced from time to time to the extent permitted by Section 6.11, the “Debt Financing Commitment”), to provide, subject to the terms and conditions therein, debt financing in the amounts set forth therein for the purpose of this Agreementfunding the Transactions (being collectively referred to as the “Debt Financing”). The Debt Financing Commitment is a legal, Constellation shall takevalid and binding obligation of Buyer and, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummatethe knowledge of Buyer, the Committed Debt Financing on other parties thereto, in each case subject to applicable bankruptcy, insolvency, reorganization, moratorium or prior other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity. As of the Closing Date on the terms and conditions set forth in the Debt Commitment Letterdate hereof, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained Commitment is in the Debt Commitment Letter (including full force and effect and has not been withdrawn, rescinded or terminated or otherwise amended or modified in any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any respect. As of the Other Parties’ failure date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to furnish information as required under Section 6.15(c)); (iv) upon satisfaction constitute a breach or default on the part of the financing conditions set forth in the Debt Commitment LetterBuyer or, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis knowledge of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement ofBuyer, any of the other parties to the Debt Commitment Letter if such terminationFinancing Commitment, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any a failure of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of . Subject to the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions contained in Section 7.1 and 7.2 hereof and the commencement and completion of the Marketing Period, as of the date hereof, Buyer has no reason to believe that any of the conditions in the Debt Financing Commitment Letter will not be satisfied, or that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall Financing will not be deemed made available on a timely basis in order to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice consummate the Transactions. As of the date hereof, no Lender has notified Buyer of its intention to terminate any of the Other Parties of any terminationDebt Financing Commitment or not to provide the Debt Financing. The net proceeds from _ the Debt Financing, amendmenttogether with cash on hand, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would will be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount payment of any fees and the transaction expenses of all parties; provided further that Constellation shall not or payable by Buyer, or the Company, and any related repayment or refinancing of any Funded Indebtedness of the Group Companies, and any other amounts required to be deemed to have violated this Section 6.15(a) if paid in connection with the approval consummation of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed the Transactions. Assuming the availability of the Debt Financing, Buyer will have cash on the Closing Date sufficient for the satisfaction of Buyer’s obligations under this Agreement specifically referenced in the immediately preceding sentence. Buyer has paid in full any and all commitment or other fees required by the Debt Financing Commitment that are due as of the date hereof, and will pay, after the date hereof, all such fees as they become due. The Debt Financing Commitment is not subject to any conditions precedent to the obligations of the parties thereunder to make the full amount of the Debt Financing available to Buyer other than as set forth therein (iiincluding the payment of customary fees). There are no side letters or other Contracts (except for any customary engagement letter, a true and complete copy of which has been provided to the Company, with only the fee amounts and certain other terms (none of which would reduce the aggregate principal amount or affect the conditionality of the Debt Financing) for redacted) relating to the Debt Financing to which Buyer or any of its Subsidiaries is a party other than as expressly set forth in the Debt Financing Commitment. For the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in it is not a condition to Closing under this Agreement for Buyer to obtain the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of or any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letteralternative financing.
Appears in 1 contract
Financing. (a) Subject Purchaser shall use reasonable best efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to appropriate action, do, or cause to be done, all things necessary, proper or advisable under applicable law, and to obtain execute and deliver, or cause to be obtainedexecuted and delivered, such instruments and documents as may be necessary, proper or advisable to consummate, arrange and obtain the Committed Debt Financing on or prior to the Closing Date as promptly as reasonably practicable on the terms and subject only to the conditions described in the Debt Commitment Letter and Fee Letter, including (i) to negotiate and enter into definitive agreements (the “Definitive Agreements”) with respect to the Debt Financing on the terms and subject only to the conditions contained in the Debt Commitment Letter and Fee Letter or on such other terms as Purchaser and the Lenders shall agree so long as the terms of the Definitive Agreements (w) do not reduce the aggregate amount of the Debt Financing to below the amount set forth in the Debt Commitment Letter, including using reasonable best efforts to: (ix) maintain in effect do not contain additional or modified conditions or other contingencies to the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute funding of the Debt Financing Documents on terms than those contained in the Debt Commitment Letter Letter, and (including any “flex” provisions related thereto); y) are otherwise not reasonably likely to impair or delay the Closing or the date on which the Debt Financing would be obtained, (iiiii) to satisfy (or obtain the waiver of) on a timely basis, basis all conditions to obtaining the Financing applicable to Purchaser or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions its Affiliates set forth in the Debt Commitment LetterLetter and the Definitive Agreements, (iii) to comply in all material respects with its obligations under the Debt Commitment Letter (or obtain the waiver of such obligations) and (iv) to consummate the Committed Debt Financing contemplated by the Debt Commitment Letter and the Fee Letter at or prior to the Closing, including by using its reasonable best efforts to cause the Debt Financing Sources and the other persons committing Lenders to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter.
Appears in 1 contract
Samples: Stock Purchase Agreement (Concha Y Toro Winery Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior Prior to the Closing, including the Company shall use commercially reasonable efforts to provide, at the Buyer’s sole expense, the following reasonable cooperation with the Buyer’s efforts to obtain the financing for purposes of consummating the transactions contemplated by this Agreement (provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company or any of its Subsidiaries): (i) participating in a reasonable number of meetings, rating agency presentations and due diligence sessions, (ii) assisting the Buyer and its financing sources in the preparation of (A) offering memoranda, customary confidential information memoranda (including, to the extent necessary, an additional confidential information memorandum that does not include material non-public information), private placement memoranda, registration statements, prospectuses and other disclosure documents, in each case, as may be reasonably requested by the Buyer, and (B) materials for rating agency presentations, and (iii) as promptly as reasonably practicable, furnishing the Buyer and its financing sources with such other information as the Buyer may reasonably request in connection with satisfying the diligence requirements of its financing sources and related debt covenants or satisfying federal and state securities Laws requirements and securities exchange requirements; provided, that (1) the Company shall not be required to pay any fees (other than reasonable out of pocket expenses reimbursed by the Buyer hereunder) or incur any other liability in connection with the financing of the transactions contemplated by this Agreement until after the occurrence of the Closing and none of the Sellers, the Blockers, the Company or any of the Company’s Subsidiaries shall be required to pay any fees or incur any other liability in connection with the financing at any time, (2) none of the Sellers, the Blockers, the Company or any of the Company’s Subsidiaries or any of their respective Representatives shall be required to deliver or cause the Debt Financing Sources delivery of any legal opinions or accountants’ cold comfort letters or reliance letters or any certificate as to solvency or any other certificate necessary for the financing, (3) none of the Sellers, the Blockers, the Company or any of the Company’s Subsidiaries shall be required to take any action relating to the financing that is not contingent upon the Closing, other than providing information, documents and data reasonably requested (and the other persons committing execution by the Company of any documents in connection with the financing for the transactions contemplated hereby will be subject to fund the Committed Debt Financing to fund consummation of the Committed Debt Financing transactions contemplated hereby at the Closing in and such amount whichdocuments will not take effect prior thereto), taken together with and (4) no Representative of any Seller, any Blocker or the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would Company shall be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to take any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner action that would reasonably be expected to (x) delay result in or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) cause any personal liability on the Closing Date part of any Representative, unless the Buyer agrees to pay or (y) adversely impact the ability of Constellation to enforce its rights against other parties discharge such liability. Any information provided or made available to the Debt Commitment Letter Buyer or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed its Representatives pursuant to have violated this Section 6.15(a5.10(a) if Constellation shall have (A) provided prior written notice be subject to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterConfidentiality Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Mattress Firm Holding Corp.)
Financing. (a) Subject Parent acknowledges and agrees that (i) its obligations pursuant to this Agreement are not subject in any respect to any financing or similar contingency or to the terms availability of the financing contemplated by the Debt Financing or any Alternative Financing, and conditions (ii) none of this Agreementthe Sellers, Constellation the Seller Representative and the Company, on behalf of themselves and any of their respective Affiliates have any responsibility for the Debt Financing, other than as explicitly set forth in Section 5.8(f). Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, arrange and to consummate, consummate the Committed Debt Financing on or prior to at the Closing Date on the terms and conditions set forth in the Debt Commitment Letter, including using its reasonable best efforts to: (i) comply with and maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; Letter, (ii) negotiate and execute enter into definitive agreements with respect thereto, (iii) comply with and perform the obligations applicable to it pursuant to such Debt Commitment Letter, (iv) draw down on and consummate the Debt Financing Documents on terms contained (which will include agreeing to consummate the Debt Financing even if any “flex” rights in the Debt Commitment Letter are exercised to their maximum extent) if the conditions to the availability of the Debt Financing have been satisfied or waived, including using its reasonable best efforts to enforce its rights under the Debt Commitment Letter and the definitive documentation governing the Debt Financing and cause the Debt Financing Sources to fund the Debt Financing at the Closing, provided, however, that Parent shall not be required to commence or pursue litigation, and the Sellers and the Company shall not have the right to compel Parent to commence or pursue litigation, to enforce the obligations of the Debt Financing Sources to fund the Debt Financing, and (including any “flex” provisions related thereto); (iiiv) satisfy on a timely basis, or obtain a waiver of, any financing basis all conditions applicable to it in the Debt Commitment Letter and such definitive agreements. If any portion of the Debt Financing expires or terminates or otherwise becomes unavailable, Parent shall use its reasonable best efforts to arrange for and obtain as promptly as practicable following the occurrence of any such event alternative debt financing (the “Alternative Financing”) in an amount sufficient to consummate the Contemplated Transaction and pay related fees and expenses and perform all of its obligations hereunder on terms and conditions that are within Constellation’s control not materially less favorable or more onerous (but excluding any condition where including imposition of new conditions or expansion of existing conditions), in the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions aggregate, than those set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing but in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter event in a manner that would reasonably be expected to (x) materially impede, materially delay or prevent the funding consummation of the Committed Debt Contemplated Transactions, it being understood that if Parent proceeds with any Alternative Financing, Parent shall be subject to the same obligations with respect to such Alternative Financing (or satisfaction of the financing conditions as set forth in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties this Agreement with respect to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Shenandoah Telecommunications Co/Va/)
Financing. (a) Subject Purchaser shall use, and shall cause its affiliates to use, reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable to obtain funds sufficient to pay the terms Purchaser Payment Amounts as and conditions when due. In furtherance and not in limitation of this Agreementthe foregoing, Constellation Purchaser shall use, and shall cause its affiliates to use, reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtainedconsummate and obtain, and to consummateno later than the Closing Date, the Committed Debt Financing on or prior to the Closing Date on the terms and subject only to the conditions (including the market flex provisions) set forth in the Financing Letters, including using reasonable best efforts to (i) maintain in effect the Financing Letters (in the case of the Debt Commitment Letter, until the effectiveness of the definitive agreements relating to the Debt Financing), (ii) promptly negotiate and enter into (and, thereafter, maintain in effect) definitive agreements relating to the Debt Financing on the terms and subject only to the conditions (including the market flex provisions) set forth in the Debt Commitment Letter (or on terms not materially less favorable, and on conditions not less favorable, to Purchaser than the terms and conditions (including market flex provisions) set forth in the Debt Commitment Letter), including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy (and cause its affiliates to satisfy) on a timely basis, or obtain a waiver of, any financing basis all conditions applicable to Purchaser and its affiliates in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where Financing Letters and the failure definitive agreements relating to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); Financing, (iv) upon satisfaction cause the Guarantor and the Debt Financing Sources to fund the full amount of the financing Financing at the Closing if the conditions thereto set forth in the Equity Commitment Letter or the Debt Commitment Letter, as applicable, have been satisfied (other than those which are dependent upon, or are to consummate occur simultaneously with, the Committed Debt funding of the Financing), and (v) enforce its rights under the Financing at or prior Letters and the definitive agreements relating to the ClosingFinancing. Purchaser shall not, including without the prior written consent of the Sellers’ Representative, (i) agree to cause or permit the termination of any Financing Letter (other than, in the case of the Debt Financing Sources and Commitment Letter, upon the other persons committing effectiveness of the definitive agreements relating to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries Financing) or (ii) agree to arrange and consummate the Committed Debt Financing. Constellation shall not or permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or grant any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter Letters or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter.definitive
Appears in 1 contract
Samples: Securities Purchase Agreement (White Mountains Insurance Group LTD)
Financing. (a) Subject to the terms Parent and conditions of this Agreement, Constellation Merger Sub shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable use their respective reasonable best efforts to obtain or cause to be obtained, and to consummate, the Committed Debt proceeds of the Financing on at or prior to the Closing Date Effective Time on the terms and conditions set forth described in the Commitment Letters, including (i) maintaining in effect the Commitment Letters, (ii) negotiating, as promptly as practicable, definitive agreements with respect to the Debt Financing to be entered into at or prior to the Effective Time (the “Definitive Financing Agreements”) consistent with the terms and conditions contained in the Debt Commitment LetterLetters (including, including using reasonable best efforts to: (i) maintain as necessary, agreeing to any requested changes to the commitments thereunder in effect the Debt Commitment Letter and comply accordance with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms any “flex” provisions contained in the Debt Commitment Letter (including or the Fee Letter), in each case which terms shall not in any “flex” provisions related thereto); (iii) satisfy respect expand on a timely basis, or obtain a waiver of, any financing the conditions in to the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any funding of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of proceeds from the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the ClosingEffective Time or reduce the aggregate amount of the proceeds from the Debt Financing available to be funded at or prior to the Effective Time below the Required Amounts, including (iii) satisfying on a timely basis all conditions in the Commitment Letters and the Definitive Financing Agreements applicable to Parent or Merger Sub and their Affiliates to obtain the Financing and (iv) borrowing an amount necessary in accordance with the terms of the Definitive Financing Agreements to consummate the Transactions. In the event that all conditions contained in the Commitment Letters (other than, with respect to the Debt Financing, the availability of the Equity Financing) have been satisfied (or upon funding will be satisfied), Parent and Merger Sub shall use their reasonable best efforts to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agreeLenders, and shall cause its Subsidiaries not to permit or agreethe Equity Investors, to fund at or prior to the Effective Time the Financing required to consummate the Transactions and to pay related fees and expenses at or prior to the Effective Time. Parent and Merger Sub shall use their reasonable best efforts to comply with their respective obligations. Parent and Merger Sub shall not, without the prior written consent of the Company, (A) permit any terminationamendment, amendment assignment, supplement or modification to be made to, or any waiver of any provision or remedy under, restate, substitute or replace, the Commitment Letters if such amendment, assignment, supplement, modification, waiver, restatement, substitution or replacement (1) would (x) adversely and materially impact the ability of either Parent or Merger Sub to enforce their respective rights against any other parties to the Commitment Letters or the Definitive Financing Agreements relative to the ability of Merger Sub to enforce its rights against any of such other parties to the Commitment Letters as in effect on the date hereof, (y) add new (or expand any existing) conditions to the receipt of the Financing or otherwise adversely affect (including with respect to timing) the ability or likelihood of Parent or Merger Sub to timely consummate the Merger at the Closing or any replacement ofof the Transactions, any or (z) be reasonably expected to make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur, (2) reduces the aggregate amount of the Financing or (3) would otherwise reasonably be expected to prevent, impede or materially delay the consummation of the Transactions; provided, that Parent or Merger Sub may amend the Debt Commitment Letter if to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement or (B) take or fail to take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letters. Upon any such terminationpermitted amendment, amendmentsupplement, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent accordance with this Section 7.14(a), the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the terms “Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties Letter” and “Debt Financing” shall refer to the Debt Commitment Letter as so amended, supplemented, modified, waived or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount replaced and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letterdebt financing contemplated thereby.
Appears in 1 contract
Financing. Not later than forty-five (a45) Subject days following the date of this Agreement (the “Deadline”), Buyer shall have obtained an executed commitment letter from a Financing Source for debt financing, in form and substance reasonably satisfactory to Seller (the “Debt Financing Commitment Letter”) that, when taken together with cash on hand and other sources and uses of Buyer, is at least equal to the terms and conditions of this Agreement, Constellation Aggregate Closing Cash Consideration (the “Debt Financing”). Buyer shall use its best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable to obtain (a) maintain in effect any executed engagement letter with such Financing Source (the “Debt Financing Engagement Letter”) or any Debt Financing Commitment Letter and (b) enter into definitive financing agreements with respect to the Debt Financing. Upon request of Seller, Buyer shall provide to Seller, on a timely basis, copies of all commitment (but not fee) letters and material definitive documents relating to the Debt Financing, and shall keep Seller reasonably informed of material developments in respect of the Debt Financing. Nothing in this Section 6.08 or any other provision of this Agreement shall require, and in no event shall the “best efforts” of Buyer be deemed or construed to require Buyer to, waive any material term or condition of this Agreement, sell or cause the sale of (i) any real property or (ii) any equity interest on terms unacceptable to be obtainedBuyer or Holdings, agree to material terms for the Debt Financing that are worse for Buyer or Holdings from those contained in the Debt Financing Commitment Letter, pay any fees or other amounts higher than those contained in the Debt Financing Commitment Letter, commence any legal Action or proceed against any of Buyer’s or Holding’s Financing Sources or take any Action that could cause or result in a Default or an Event of Default (each as defined in that certain Credit Agreement, dated as of June 30, 2017, among Holdings, the administrative agent thereunder and the lenders party thereto from time to time (as amended, restated, supplemented or otherwise modified from time to time, the “Holdings Credit Agreement”)). Notwithstanding anything to the contrary contained in this Agreement, (A) in the event the Debt Financing Commitment Letter is not entered within the time frame required by this Section 6.08, the Seller may, in its sole discretion, terminate this Agreement upon written notice to Buyer within ten (10) Business Days after the Deadline, and to consummate, (B) in the Committed event the Debt Financing is not obtained by Buyer or Holdings for any reason on or prior to the Closing Date on the terms and conditions set forth in the Debt Commitment LetterDate, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, this Agreement may be terminated by Buyer or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) Seller upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties other party. In the event this Agreement is terminated pursuant to either of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(aclauses (A) and or (B) ), Seller’s sole and exclusive remedies shall be to retain the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount Deposit and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for paid the avoidance of doubt, neither the existence nor the exercise of any “flex” provision Termination Fee in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent accordance with the Debt Commitment LetterSection 8.02(b).
Appears in 1 contract
Financing. (a) Subject Buyer shall use its commercially reasonable efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, arrange the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth described in the Debt Commitment LetterLetter (provided that Buyer may replace or amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof, or otherwise so long as the terms would not materially delay or prevent the consummation of the transactions contemplated hereby), including using commercially reasonable best efforts to: to (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; Letter, (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing basis all conditions applicable to Buyer to obtaining the Debt Financing set forth in the Debt Commitment Letter that are within Constellation’s the control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure Buyer (including by consummating the Equity Financing pursuant to furnish information as required under Section 6.15(cthe terms of the Equity Commitment Letter)); , (iii) enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Commitment Letters or on other terms that would not materially adversely impact the ability or likelihood of Buyer to consummate the transaction contemplated hereby, and (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing. Subject to the foregoing requirements, including the Parties acknowledge that the definitive agreements referenced in clause (iii) of the foregoing sentence must be acceptable to cause Buyer in all respects and that the failure of Buyer and its lenders to finally agree on such definitive agreements after a good faith negotiation thereof shall not constitute a breach of Section 6.3(iii). If any portion of the Debt Financing Sources becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter, Buyer shall use its commercially reasonable efforts to arrange to obtain alternative financing from alternative sources in an amount sufficient to consummate the Transactions as promptly as practicable following the occurrence of such event; provided, that such alternative financing shall be on terms and conditions materially no less favorable to Buyer and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing Company than those provided in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount Commitment Letter (as such terms may be changed as provided in the preceding sentence), or otherwise on terms and all transaction expensesconditions acceptable to Buyer. Constellation Buyer shall give Seller prompt notice of any material breach by any party to the Commitment Letters of which Buyer becomes aware, or any termination of the Commitment Letters. Buyer shall keep the Other Parties Company informed on a reasonably current basis in reasonable detail of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions The Company hereby consents to the receipt use of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter its and its Subsidiaries’ names and logos in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if connection with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter.
Appears in 1 contract
Financing. (a) Subject Buyer shall use its reasonable best efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper necessary or advisable to (i) satisfy on a timely basis (or obtain or cause a waiver of) all material terms, conditions, representations and warranties applicable to be obtainedBuyer set forth in the Commitment Letters; (ii) maintain in effect the Commitment Letters, negotiate and to consummate, the Committed Debt Financing on or prior to the Closing Date enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Commitment Letters or on other terms acceptable to Buyer which would not be reasonably expected to delay or prevent the Closing; (iii) consummate the Financing pursuant to the Commitment Letters at the Closing and (iv) enforce the counterparties’ obligations and its rights under the Commitment Letters, provided that under no circumstances shall Buyer or any of its Affiliates be required to, or be required to permit the Company or its Subsidiaries to, issue any equity or debt securities or sell, dispose or otherwise transfer any assets in order to satisfy any conditions in the Commitment Letters or in order to arrange or obtain any Financing pursuant to the Commitment Letters. If any portion of the Financing described in the Commitment Letters becomes unavailable on the terms and conditions described above, Buyer shall (i) immediately notify the Securityholders’ Representative and (ii) use its reasonable best efforts to obtain alternative financing (the “Alternative Financing”) from alternative sources (on terms and conditions that are no less favorable to Buyer than the terms and conditions as set forth in the Debt Commitment LetterLetters) as promptly as practicable following the occurrence of such event; provided however, including using that Buyer shall not be required to obtain financing which in Buyer’s reasonable best efforts tojudgment includes: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; terms which are, taken as a whole, less advantageous to Buyer or (ii) negotiate and execute economic terms less advantageous to Buyer, in each case relative to those the Debt Commitment Letters. Buyer shall keep the Securityholders’ Representative promptly apprised of material developments relating to the Financing Documents on terms contained in pursuant to the Debt Commitment Letter (Letters, including providing immediate notice of any “flex” provisions related thereto); (iii) satisfy on a timely basisbreach by any party to, or obtain a waiver termination of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take Letters or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account document relating to such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for . For the avoidance of doubt, neither Buyer shall not terminate or consent to the existence nor the exercise termination of any “flex” provision in of the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver Letters prior to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt expiration thereof in accordance with its terms except in connection with obtaining Alternative Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (SCG Financial Acquisition Corp.)
Financing. (a) Subject Acquiror shall use its commercially reasonable efforts to arrange the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth described in the Debt Commitment LetterFinancing Commitment, including using its commercially reasonable best efforts to: to (i) maintain in effect negotiate definitive agreements with respect thereto on the Debt Commitment Letter terms and comply with its obligations thereunder; conditions contained therein, (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, basis all conditions applicable to Acquiror or obtain a waiver of, any financing conditions of its Affiliates in the Debt Commitment Letter such definitive agreements that are within Constellation’s its or its Affiliates’ control and (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iviii) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing. Such efforts shall include Acquiror’s and Merger Sub’s use of commercially reasonable efforts to cause the lenders party to the Debt Financing Commitment to fund the Bridge Facilities (as defined in the Debt Financing Commitment) on or before September 29, 2006, provided that the conditions precedent to the provision of such facilities have been satisfied or waived by such date. Acquiror shall use its reasonable best efforts to obtain the Equity Financing upon satisfaction or waiver of (A) the conditions to Closing set forth in such amount whichArticle IX and (B) the conditions to the funding of the Debt Financing (or any Alternative Financing (as defined below)) (in the case of clauses (A) and (B), taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less other than the amount those conditions that would be required by their nature are to be pay satisfied at the Closing, but subject to the satisfaction or waiver of those conditions). If any portion of the Debt Payoff Amount Financing becomes unavailable on the terms and all transaction expensesconditions contemplated in the Debt Financing Commitment, Acquiror shall use its commercially reasonable efforts to obtain any such portion from alternative sources on terms that are not less favorable to Acquiror and the Surviving Corporation (“Alternative Financing”) as promptly as practicable following the occurrence of such event. Constellation Acquiror shall give the Company prompt notice of any breach by any party of the Debt Financing Commitment or any termination of the Debt Financing Commitment. Acquiror shall keep the Other Parties Company informed on a reasonably current basis in reasonable detail of the status of its efforts and those of its Subsidiaries to arrange the Debt Financing and consummate shall not permit any amendment or modification adverse to the Committed Company to be made to the Debt Financing Commitment without obtaining the Company’s prior written consent (not to be unreasonably withheld or delayed). Acquiror shall provide notice to the Company promptly upon receiving the Debt Financing. Constellation Acquiror shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification the Equity Financing Commitment to be made to, amended or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter modified in a manner that would reasonably is adverse to the Company, and Acquiror shall not permit any provision thereof to be expected waived in a manner that is adverse to (x) delay or prevent the funding Company, without the prior written consent of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterCompany.
Appears in 1 contract
Financing. Prior to the Closing, the Company shall and shall cause each of its respective representatives and employees to provide to the Purchaser, at the Purchaser's sole expense, all commercially reasonable cooperation reasonably requested by the Purchaser in connection with and required by the Debt Financing and to use their respective commercially reasonable efforts to cause appropriate officers and employees of the Company, at the Purchaser's sole expense, (a) Subject to be available on a customary basis to meet with prospective lenders, and participate and prepare for presentations, meetings, and due diligence sessions, (b) to assist with the preparation of customary disclosure documents and bank information memoranda, projects and similar documents in connection therewith, in each case, at such times as coordinated reasonably in advance thereof, (c) to furnish the Purchaser and its Debt Financing Sources with financial statements required to be delivered pursuant to paragraph (c) subclause (iv) of Annex C to the terms Debt Commitment Letter and conditions of this Agreement, Constellation shall take, or cause such other financial and other pertinent information regarding the Company as may be reasonably requested by the Purchaser in connection with the Debt Financing to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtainedthe extent such information is readily available, and (d) to consummatetake such reasonable actions as may be required to facilitate the pledge of the equity interests of the Company being purchased by the Purchaser at the Closing to secure the Debt Financing; provided, however, that nothing herein shall require any such cooperation to the Committed extent it would interfere unreasonably with the business or operations of the Company or its 38 Subsidiaries. None of the Company or any of its Subsidiaries or any of their respective officers or employees shall be required to take any action that would subject it to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment or incur any other liability or provide or agree to provide any indemnity in connection with the Debt Financing or any of the foregoing unless such action is contingent upon the Closing. The Purchaser shall be responsible for all out-of-pocket, third party fees and expenses related to the Debt Financing (including all fees under commitment letters and all indemnity claims under any of them). Nothing in this Section 8.09 shall require any cooperation to the extent that it would (u) require delivery of any financial statements for any period that is not otherwise specifically required hereunder, (v) require the board of directors (or similar governing body) of the Company or any Subsidiary to take any action to approve the execution or delivery of any document or certificate in connection with the Debt Financing or any officer of the Company or any of its Subsidiaries who is not an officer of the Company or such Subsidiary following the Closing to execute or deliver any document or certificate in connection with the Debt Financing, (w) require any counsel for the Company or any of its Subsidiaries to deliver any legal opinion in connection with the Debt Financing, (x) require the Company or any of its Subsidiaries to take any action that would conflict with or violate the Company's or any of its Subsidiaries' governing documents (to the extent such governing documents have been made available to the Purchaser on or prior to the Closing Date date hereof and as they are in effect on the terms and conditions set forth date hereof) or any Laws or would result in a violation or breach of, or default under, any material contract, (y) require any officer of the Company or any of its Subsidiaries to deliver any solvency certificate or authorization letter or (z) result in any officer or director of the Company or any of its Subsidiaries incurring any personal liability with respect to any matters relating to the Debt Commitment LetterFinancing; and provided, including using reasonable best efforts to: (i) maintain in effect further, that no obligation of the Debt Commitment Letter Company or any of its Subsidiaries under any certificate, document or instrument shall be effective until the Closing and comply with the Company and its obligations thereunder; (ii) negotiate and execute Subsidiaries shall not be required to take any action under any certificate, document or instrument that is not contingent upon the Debt Financing Documents on terms contained in the Debt Commitment Letter Closing (including entry into any “flex” provisions related thereto); (iiiagreement that is effective before the Closing) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to would be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or effective prior to the Closing, including to cause . Nothing in this Section 8.09 shall require the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those Company or any of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made provide access to, or to disclose any waiver of any provision underinformation to, the Purchaser or any replacement of, any of the Debt Commitment Letter Purchaser's representatives if such termination, amendment, modification, waiver access or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that disclosure would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect theretowaive any legal privilege; provided that the Company shall use commercially reasonable efforts to provide such information in a form or manner that would not waive such legal privilege (i) Constellation including by redacting or otherwise not disclosing any portion thereof the disclosure of which would jeopardize such privilege). The Purchaser shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to promptly upon request by the Other Parties of any terminationCompany, amendment, modification, waiver or replacement it or reimburse the Company for all reasonable and documented costs and out-of-pocket expenses (including reasonable and documented attorneys' fees) incurred by the Company and its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted in connection with providing the assistance contemplated by the foregoing provisions of this Section 6.15(a) 8.09 and (B) indemnify and hold harmless the parties reasonably agree thatCompany, taking into account such terminationits Subsidiaries and their respective officers, amendmentdirectors, modificationemployees, waiver Affiliates and/or agents from and against any and all losses, damages, claims, costs or replacement, New Polaris will have at expenses suffered or incurred by any of them in connection with the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying arrangement or consummation of the Debt Payoff Amount and Financing or any information used in connection therewith (except in the transaction expenses event such loss or liability arises out of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with or results from the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shallgross negligence or Willful Misconduct of, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise breach of any “flex” provision in of its obligations by, the Debt Commitment Letter shall constitute a breach of this provision and Seller, the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of Company or any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterCompany's Subsidiaries or any of their respective Affiliates or representatives).
Appears in 1 contract
Samples: Securities Purchase Agreement (NorthStar Asset Management Group Inc.)
Financing. (a) Subject On or prior to the terms date hereof, Buyer has delivered to Seller (i) a true and conditions complete copy of a commitment letter (the "Commitment Letter") executed by Buyer and Credit Suisse (the "Bank") indicating the Bank's commitment to provide bank financing (the "Bank Financing") for the acquisition of the Business by Buyer and (ii) a true and complete copy of the Replacement Precious Metals Agreement (as defined in Section 5.9 hereof). Buyer has, prior to the date of this Agreement, Constellation shall takedelivered, and hereafter will deliver or cause to be takendelivered, to Seller (or its designated representatives) true and complete copies of all actions drafts of all documentation prepared and to do, or cause exchanged by the parties in respect of the Bank Financing (other than drafts of the Commitment Letter) such delivery to be done, all things necessary, proper or advisable made promptly after the receipt of the documentation. The Bank Financing is sufficient and adequate financing to permit the Buyer to consummate the transactions contemplated by this Agreement. Buyer agrees to use its best efforts to obtain or cause to be obtained, and to consummate, the Committed Debt Bank Financing on or prior to the Closing Date on the terms and conditions set forth in contemplated by the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in except for such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall changes which will not permit or agreeadversely affect Seller, and shall cause its Subsidiaries not otherwise on such terms and conditions as are reasonably satisfactory to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect theretoBuyer and Seller; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any terminationhowever, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent they cannot obtain Bank Financing on such terms, Buyer shall otherwise use its best efforts to obtain financing for the transactions contemplated by this Agreement on terms reasonably satisfactory to Buyer and Seller. Seller agrees to cooperate with Buyer in connection with Buyer's obtaining the Debt Bank Financing, including, without limitation, the establishment of security arrangements contemplated by the Bank Financing as of the Closing. Following receipt by Buyer of any written or oral communication to the effect that the Bank is contemplating not providing the Bank Financing or is terminating or canceling or modifying in any respect the Commitment Letter.Letters, Buyer shall immediately communicate to Seller the terms thereof and as soon as practicable
Appears in 1 contract
Financing. (a) Subject Each of Parent and Merger Sub shall use, and cause its Affiliates to the terms and conditions of this Agreementuse, Constellation shall its best efforts to take, or cause to be taken, all actions and to do, or cause to be donedone (including, if necessary, enforcement of their respective rights under the Facility Agreement), all things necessary, proper or advisable to consummate and obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior terms and conditions reasonably satisfactory to the Closing Date Special Committee (on behalf of the Company), including using (and causing their Affiliates to use) their respective best efforts to (i) enter into the Facility Agreement as promptly as practicable after the date of this Agreement, (ii) satisfy, or cause their Representatives to satisfy, on a timely basis all conditions applicable to Parent, Merger Sub or their Representatives in such Facility Agreement and (iii) cause the Lender to fund the Debt Financing at the Effective Time. In the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Facility Agreement, Parent and Merger Sub shall use their respective best efforts to arrange and obtain, as promptly as practicable following the occurrence of such event, alternative financing from alternative sources, on terms not materially less favorable in the aggregate to Parent and Merger Sub (and their respective Affiliates) than those set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain Financing as in effect on the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute date of this Agreement, in an amount sufficient, when added to the portion of the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letteravailable, to consummate the Committed Debt Financing at or prior transactions contemplated by this Agreement (the "Alternative Financings"); provided, that, notwithstanding anything to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing contrary in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit this Section 6.8 or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies in any other provision of the Debt Commitment Letter this Agreement, in a manner that would reasonably no event shall Parent or Merger Sub be expected required to (x) delay amend or prevent the funding waive any of the Committed Debt Financing terms or conditions hereof. Parent shall deliver to the Special Committee (or satisfaction on behalf of the financing conditions in the Debt Commitment Letter that are in Constellation’s controlCompany) on the Closing Date as promptly as practicable (and no later than two Business Days) after such execution, true and complete copies of all agreements or (y) adversely impact the ability of Constellation other arrangements pursuant to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation which any such alternative sources shall have committed to provide any such Alternative Financings (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) "Alternative Financing Agreements").Parent and (B) the parties reasonably Merger Sub further agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacementinformation, including any Replacement Committed Debt Financing. Without limiting the foregoingdocuments, Constellation shallinternal budgets, and shall cause projections, plans or forecasts of its applicable Subsidiary torevenues, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, other materials provided to the extent consistent Lender in connection with the Debt Commitment LetterFinancing and Alternative Financings shall be provided to the Special Committee at the same time.
Appears in 1 contract
Samples: Agreement and Plan of Merger (China Advanced Construction Materials Group, Inc)
Financing. Buyer shall use commercially reasonable efforts to close a Financing on terms reasonably acceptable to Buyer five (a5) Subject business days prior to the each time a payment is required to be made pursuant to Section 3 herein, provided that any such Financing shall not contain terms and conditions which are adverse to or otherwise prejudice the rights of the Seller Entities or otherwise limit Buyer’s ability to fulfill its obligations under this Agreement. Buyer shall use commercially reasonable efforts to satisfy, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth in the Debt Commitment Lettereach payment date, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter all requirements that are within Constellation’s control (but excluding any condition where conditions to its consummation of such Financing and to the failure to be so satisfied is a direct result of any drawing down of the Other Parties’ failure to furnish information as cash proceeds under the Financing required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing cash payment to fund the Committed Debt Financing at the Closing Seller Entities on such payment date. “Financing” means debt and/or equity financings as may be necessary to pay all amounts as may be required in such amount which, taken together connection with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis payment of the status of its efforts amounts due and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions payable to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Seller Entities under Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing3. Without limiting the generality of the foregoing, Constellation shallBuyer shall (i) notify the Seller Entities and deliver any executed amendments to any financing commitment letter, (ii) provide to the Seller Entities copies of any financing commitment letters at least five (5) days prior to the close of the Financing contemplated by such commitment letter and shall cause any definitive agreements entered into by Buyer or any of its applicable Subsidiary toAffiliates in connection with any such Financing and all executed amendments or modifications regarding any such letters or agreements, take all actions (iii) notify the Seller Entities of any assertion by any lender under any financing commitment letter or any other commitment letter or definitive agreements entered into in relation to a Financing that any condition contained in the financing commitment letter or definitive agreements entered into in relation to a Financing has not been satisfied or waived or cannot be a satisfied or waived at the time such condition is required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent satisfied and (iv) discuss with the Debt Commitment LetterSeller Entities at the Seller Entities’ reasonable request the status of any Financing.
Appears in 1 contract
Samples: Acquisition Agreement (Inverness Medical Innovations Inc)
Financing. (a) Subject From the date hereof until the Closing Date, each of Parent and Buyer shall (i) use its reasonable best efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable necessary to obtain or cause to be obtained, and to consummate, arrange the Committed Debt Financing on the terms and conditions described in the Debt Financing Commitment (including complying with any request exercising so-called “flex” provisions) and to consummate and obtain the Financing at or prior to the Closing Date on End Date, including using its reasonable best efforts to (A) maintain in effect the Debt Financing Commitment in accordance with the terms and conditions thereof, (B) satisfy (or use its reasonable best efforts to obtain the waiver of) all conditions applicable to Parent and Buyer in the Debt Financing Commitment (excluding any condition that cannot be satisfied as a direct result of the failure of any condition set forth in Section 10.01 or 10.02 of this Agreement or non-compliance by the Seller, the Transferred Subsidiaries and the Business with the provisions of Section 7.14 of this Agreement) and (C) negotiate and enter into such definitive agreements to be entered into in accordance with the Debt Financing Commitment (the “Financing Agreements”) consistent in all material respects with the terms and conditions (including any “flex” provisions) contemplated by the Debt Financing Commitment or on other terms no less favorable in any material respect to Parent or Buyer, including with respect to conditionality and (ii) subject to the satisfaction (or waiver by the Debt Financing Sources) of all conditions set forth in the Debt Commitment LetterFinancing Commitment, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to Closing and cause the applicable Financing Sources to fund the Debt Financing in an amount sufficient, together with the Equity Financing, to consummate the transactions contemplated by this Agreement and for Parent and Buyer to pay all other amounts payable by Parent and Buyer pursuant to the Transaction Documents and the Debt Financing Commitment at or prior to the Closing, including to cause ; provided that such efforts shall not include taking enforcement actions against the Debt Financing Sources and or the other persons committing to fund the Committed Debt Financing Source Related Persons). Each of Parent and Buyer shall, upon the reasonable request of Seller, provide updates to fund the Committed Debt Financing at the Closing Seller in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis reasonable detail of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt FinancingFinancing (or Alternative Financing obtained in accordance with Section 7.13(d)). Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any Without limiting the generality of the Debt Commitment Letter if such terminationforegoing, amendment, modification, waiver or replacement each of Parent and Buyer shall provide Seller with prompt written notice (A) reduces of any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would have the effect of reducingreasonably be expected to give rise to any breach or default) the aggregate amount of the Committed Debt Financing; by any party to any Financing Commitment (or to any Alternative Financing obtained in accordance with Section 7.13(d)) and (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financingany #88639600v31 written notice or other written communication from any Person with respect to any (x) actual or potential breach or default, (y) withdrawal, termination or otherwise expandsrepudiation by any party to any Financing Commitment (or to any Alternative Financing obtained in accordance with Section 7.13(d)) or (z) material dispute or disagreement between or among any parties to any Financing Commitment (or to any Alternative Financing obtained in accordance with Section 7.13(d)), amends or modifies any other provision in each case of the Debt Commitment Letter in a manner clauses (A), (B)(x) and (B)(z), that would reasonably be expected to (x) prevent, impede, delay or prevent impair the funding availability of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) Parent and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it Buyer to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated transactions contemplated by this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision Agreement in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Lettertimely manner.
Appears in 1 contract
Financing. (a) Subject Buyer shall use commercially reasonable efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth described in the Debt Commitment LetterFinancing Commitments, including using commercially reasonable best efforts to: to (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; Financing Commitments, (ii) negotiate and execute satisfy on a timely basis all conditions applicable to Buyer to obtaining the Debt Financing Documents Financing, (iii) enter into definitive agreements with respect thereto on terms and conditions contained in the Debt Commitment Letter Financing Commitments (including any “flex” provisions related thereto); provisions) (iiior other terms that would not materially and adversely impact the ability of Buyer to timely consummate the transactions contemplated hereby) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); and (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, Closing (including to cause by taking enforcement actions against the Debt Financing Sources lenders and the other persons committing to fund providing the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount whichfinancing). Buyer shall not agree to or permit any amendment, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on handsupplement or other modification of, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status or waive any of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agreerights under, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, Financing Commitment or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions definitive agreements related to the receipt of Committed Debt Financing, in each case, without Stockholders’ Representative’s prior written consent (which consent shall not be unreasonably withheld or otherwise expandsdelayed), amends except any such amendment, supplement or modifies other modification to the Financing Commitments that would not involve any other provision of conditions to funding the Debt Commitment Letter Financing that are not contained in a manner that the Financing Commitments, and would not reasonably be expected to (x) prevent, materially impede or materially delay or prevent the funding consummation of the Committed Debt Financing or the transactions contemplated by this Agreement (it being understood that, subject to the requirements of this sentence, such amendment, supplement or satisfaction other modification of the financing conditions in Financing Commitments may provide for the Debt assignment of a portion of the Financing Commitment Letter that to additional agents or arrangers and the granting to such persons of approval rights as are in Constellationcustomarily granted to additional agents or arrangers) shall be permitted hereunder without Stockholders’ Representative’s control) on the Closing Date or prior written consent (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation which consent shall not be deemed to have violated unreasonably withheld or delayed). Upon any such amendment, supplement or modification of the Financing Commitments in accordance with this Section 6.15(a) if Constellation 6.6(a), Buyer shall have (A) provided prior written notice provide a copy thereof to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount Stockholders’ Representative and the transaction expenses of all parties; provided further that Constellation term “Financing Commitments” shall not be deemed to have violated this Section 6.15(a) if with mean the approval of Polaris and SiriusFinancing Commitments as so amended, not to be unreasonably withheld, Constellation shall, supplemented or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Lettermodified.
Appears in 1 contract
Financing. Buyer shall use reasonable best efforts to obtain the Financing on the terms described in the Financing Commitments, including using reasonable best efforts (ai) Subject to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter on the terms and conditions described therein or on other terms not materially less beneficial to Buyer and not reasonably likely to result in the Closing not occurring pursuant to Section 1.3(a) (but in no event including any terms that expand the conditions precedent to the Financing), (ii) to satisfy on a timely basis all conditions applicable to Buyer set forth in the Debt Commitment Letter and the Investment Commitment Letter and (iii) to consummate the Financing at the Closing, including enforcing the obligations of this Agreementthe lenders and other Persons providing the Financing contemplated by the Financing Commitments to fund the Financing. Buyer shall keep the Company apprised of the status of, Constellation shall takeand any developments in, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable its efforts to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior (including any breach by a party to the Closing Date Financing Commitments) and shall deliver to the Company true, correct and complete copies of all definitive agreements for the Financing promptly when entered into (subject to the redaction of pricing information). In the event that any portion of the financing described in the Debt Commitment Letter becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter, including using Buyer shall promptly notify the Company, and Buyer shall use its reasonable best efforts to: (i) maintain to obtain alternative debt financing as promptly as possible following such event, including from alternative financing sources, on terms not materially less favorable in effect the aggregate to Buyer than those in the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained not reasonably likely to result in the Debt Commitment Letter Closing not occurring pursuant to Section 1.3(a) (and in no event including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing terms that expand the conditions in precedent to the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth debt Financing in the Debt Commitment Letter, ) that will enable Buyer to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expensestransactions contemplated by this Agreement. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation Buyer shall not agree to or permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver supplement or replacement (A) other modification that reduces (or would have the effect of reducing) the aggregate total amount of the Committed Debt Financing; Financing or (B) imposes new or any additional conditions or otherwise expands, amends or modifies any condition precedent to the availability of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of Financing contemplated by the Debt Commitment Letter in a manner that would reasonably be expected any material respect without the Company’s written consent. The Buyer shall not, and shall use its reasonable best efforts to cause Investor not to, consent to the assignment of any of Credit Suisse Securities (xUSA) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in LLC’s commitments under the Debt Commitment Letter that are in Constellation’s control) on without the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more consent of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterCompany.
Appears in 1 contract
Financing. To the extent necessary to pay all or any portion of the Purchase Price, Buyer shall use commercially reasonable efforts to close a Financing (aas defined herein) Subject on terms reasonably acceptable to the Buyer not less than five (5) business days prior to each time a payment is required to be made pursuant to Section 3 herein, provided that any such Financing shall not contain terms and conditions which are adverse to or otherwise prejudice the rights of the Seller Entities or otherwise limit Buyer’s ability to fulfill its obligations under this Agreement. Buyer shall use commercially reasonable efforts to satisfy, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to each payment date, all requirements that are conditions to its consummation of such Financing and to the Closing Date drawing down of the cash proceeds under the Financing required to fund the cash payment to the Seller Entities on such payment date. “Financing” means a debt and/or equity financing and/or financings as may be necessary in connection with the terms payment of all amounts that may become due and conditions set forth in payable to the Debt Commitment LetterSeller Entities under Section 3. Without limiting the generality of the foregoing, including using reasonable best efforts to: Buyer shall (i) maintain in effect notify the Debt Commitment Letter Seller Entities and comply with its obligations thereunder; deliver any executed financing commitment letter or fully executed term sheet, or amendments thereto, (ii) negotiate to the extent not prohibited by any applicable confidentiality or non-disclosure obligation (which Buyer shall use good faith and execute commercially reasonable efforts to avoid), provide to the Debt Seller Entities copies of any financing commitment letters or fully executed term sheets as soon as practicable but in any event at least ten (10) business days prior to the close of the Financing Documents on terms contemplated by such commitment letter or term sheet and any definitive agreements entered into by Buyer or any of its Affiliates in connection with any such Financing and all executed amendments or modifications regarding any such letters or agreements, (iii) notify the Seller Entities of any assertion by any lender under any financing commitment letter or any other commitment letter, investor under any fully executed term sheet, or definitive agreements entered into in relation to a Financing that any condition contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on financing commitment letter, term sheet or definitive agreements entered into in relation to a timely basis, Financing has not been satisfied or obtain waived or cannot be a waiver of, any financing conditions in satisfied or waived at the Debt Commitment Letter that are within Constellation’s control (but excluding any time such condition where the failure is required to be so satisfied is a direct result and discuss with the Seller Entities at the Seller Entities’ reasonable request the status of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); Financing, (iv) upon satisfaction provide to the Seller Entities copies of any compliance certificate provided by Buyer to its existing lenders, and (v) prepare and provide to the financing conditions set forth in Seller Entities a pro forma compliance certificate taking into account the Debt Commitment Letter, to consummate the Committed Debt consummation of any such Financing at or not less than five (5) business days prior to the Closing. In addition to the foregoing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount whichany event, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation Buyer shall not permit enter into any Financing or agree, and shall cause other transaction which contains provisions which limit or restrict the Buyer’s ability to fulfill its Subsidiaries not obligations to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, pay any of the Debt Commitment Letter if such termination, amendment, modification, waiver Purchase Price in cash or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letterstock.
Appears in 1 contract
Samples: Acquisition Agreement (Inverness Medical Innovations Inc)
Financing. (a) Subject to From the terms date hereof until the Effective Time and conditions the consummation of this Agreementthe Closing, Constellation Buyer and Merger Sub shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth in the Debt Commitment Letter, including using use their reasonable best efforts to: to arrange and obtain the Debt Financing as promptly as practicable after the date hereof, taking into account the anticipated timing of the Marketing Period, including their reasonable best efforts to (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; Letter, (ii) negotiate and execute enter into definitive agreements with respect thereto on the Debt Financing Documents on terms and subject to the conditions contained in the Debt Commitment Letter (including any “flex” provisions related applicable thereto); ) or on other terms and subject to other conditions not materially less favorable to Buyer and Merger Sub, in each case, which terms shall not expand on the conditions precedent to the funding of the Debt Financing at the Closing or reduce the aggregate amount of the Debt Financing available to be funded on the Closing Date to an amount that, when taken together with the aggregate commitments under the Equity Commitment Letter, is less than the Required Amount, (iii) satisfy on a timely basis, or obtain a waiver of, any financing thereof on a timely basis all conditions in precedent to the funding of the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure Financing applicable to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions Buyer and Merger Sub set forth in the Debt Commitment Letter and to be satisfied by Buyer or Merger Sub (including by consummating the Equity Financing pursuant to the terms of the Equity Commitment Letter), to (iv) consummate the Committed Debt Financing (including by instructing the Debt Financing Sources providing the Debt Financing to provide such Debt Financing following satisfaction of the conditions precedent to the funding thereof) at or prior to the Closing, including to cause Closing and (v) comply with obligations under the Debt Financing Sources Commitment Letter. Buyer and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation Merger Sub shall not permit or agree, and shall cause its Subsidiaries their Affiliates not to permit take or agreerefrain from taking, to any termination, amendment directly or modification to be made to, or any waiver of any provision under, or any replacement ofindirectly, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner action that would reasonably be expected to (x) delay or prevent the funding result in a failure of any of the Committed Debt Financing (or satisfaction of the financing conditions contained in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more such that any remaining amount of the Other Parties in writingDebt Financing available to be funded on the Closing Date would be reduced to an amount that, to the extent consistent when taken together with the Debt aggregate commitments under the Equity Commitment Letter, is less than the Required Amount. At the request of the Company, Buyer shall keep the Company reasonably informed of the status in reasonable detail of its efforts to arrange and consummate the Debt Financing and of all material developments in respect thereof.
Appears in 1 contract
Financing. Prior to the Closing, the Company shall use its reasonable efforts, at Parent’s sole expense, to assist Parent in a refinancing of all or any portion of the Indebtedness of the Company existing on the date hereof (the “Debt Financing”), including: (i) participating in a reasonable number of meetings, presentations and due diligence sessions; (ii) assisting with the preparation of one customary offering memorandum and one presentation in connection with the Debt Financing; and (iii) executing and delivering any definitive financing documents and certificates as may be reasonably requested by Parent; provided that (a) Subject irrespective of the above, no obligation of the Company or any of its Subsidiaries under any certificate, document or instrument shall be effective until the Effective Time and none of the Company or any of its Subsidiaries shall be required to take any action under any certificate, document or instrument that is not contingent upon the terms and conditions of this Agreement, Constellation shall take, Closing (including the entry into any agreement that is effective before the Effective Time) or cause to that would be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or effective prior to the Effective Time, (b) such efforts do not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries, and (c) none of the Company or any of its Subsidiaries shall be required to issue any offering or information document. None of the Company or any of its Subsidiaries shall be required to bear any cost or expense or to pay any commitment or other similar fee or make any other payment in connection with the Debt Financing or any of the foregoing prior to the Effective Time, and Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs incurred by the Company, its Subsidiaries and their Representatives in connection with the Debt Financing or any cooperation pursuant to this Section 6.14. Parent shall indemnify and hold harmless the Company, its Subsidiaries and the Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the Debt Financing (including any action taken in accordance with this Section 6.14) and any information utilized in connection therewith (other than arising from historical information provided by the Company or its Subsidiaries). The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided that such logos shall be used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Company or any of its Subsidiaries. Parent and Merger Sub acknowledge and agree that the obtaining of the Debt Financing is not a condition to Closing Date on and reaffirm their obligation to consummate the terms transactions contemplated by this Agreement irrespective and independently of the availability of the Debt Financing, subject to fulfillment or waiver of the conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterArticle VII.
Appears in 1 contract
Financing. (a) Subject Buyer has delivered to the terms Company true and conditions complete copies of a commitment letter, dated October 13, 2015, between Buyer and Xxxxx Fargo Bank, National Association (the “Financing Commitments”), pursuant to which Xxxxx Fargo Bank, National Association, has agreed to lend the amounts set forth therein (the “Debt Financing”) for the purpose of funding the transactions contemplated by this Agreement. None of the Financing Commitments has been amended or modified prior to the date of this Agreement, Constellation shall takeand the respective commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect. The Financing Commitments are in full force and effect and constitute the legal, valid and binding obligations of each of Buyer and the other parties thereto pursuant to their terms. There are no conditions precedent or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior other contingencies related to the Closing Date on funding of the terms and conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute full amount of the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related theretoprovisions); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information other than as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment LetterFinancing Commitments. The aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Financing Commitments, to consummate the Committed Debt Financing at or together with Buyer’s cash on hand prior to the Closing, including to cause the Debt Financing Sources will be sufficient for Buyer and the other persons committing Company (post-Closing) to fund the Committed Debt Financing pay all amounts contemplated by ARTICLE II, and to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required pay all related fees and expenses to be pay paid by Buyer at Closing. Assuming that the Debt Payoff Amount representations and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis warranties contained in ARTICLE III and IV are true and correct, as of the status date of its efforts and those this Agreement, no event has occurred which would result in any breach or violation of its Subsidiaries to arrange and consummate or constitute a default (or an event which with notice or lapse of time or both would become a default) under the Committed Debt Financing. Constellation shall not permit or agreeFinancing Commitments, and shall cause its Subsidiaries Buyer does not have any reason to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies believe that any of the conditions to the receipt of Committed Debt Financing, Financing will not be satisfied or otherwise expands, amends or modifies any other provision of that the Debt Commitment Letter Financing will not be available to Buyer on the Closing Date. Buyer has fully paid all commitment fees or other fees required to be paid prior to the date of this Agreement pursuant to the Financing Commitments. Notwithstanding the foregoing or anything to the contrary set forth in a manner this Agreement, Buyer’s obligations hereunder are not subject to any condition that would reasonably be expected to (x) delay or prevent Buyer obtain the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Alternative Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter).
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Constellation Parent shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth in the Debt Commitment Letter, including using use its reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute definitive agreements (the “Definitive Debt Agreements”) with respect to the Debt Financing Documents on the terms and conditions contemplated by the Debt Financing Commitment or, to the extent the financing contemplated by the Debt Financing Commitment is not available to Parent, on terms contained that do not contain any conditions to the receipt of such Debt Financing that are materially less favorable, in the aggregate, to Parent and the Company (as determined in the reasonable judgment of Parent, and with such determination based in part on the relevant closing conditions) than the terms of the Debt Financing Commitment Letter and subject to the additional limitations set forth in Section 5.12(c), (including any “flex” provisions related thereto); (iiiii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing basis all conditions set forth in the Debt Financing Commitment Letter(and the Definitive Debt Agreements) applicable to Parent and Merger Sub that are within their control, to consummate the Committed Debt Financing (iii) obtain, at or prior to the ClosingClosing Date, including the financing necessary such that Parent and Merger Sub, in either case, will have at and after the Closing funds sufficient to cause pay all of the amounts payable under Article I or otherwise in connection with the Merger and all fees and expenses of the parties hereto associated with the consummation of the Merger and the other transactions contemplated hereby and (iv) comply with Parent’s and Merger Sub’s obligations under the Debt Financing Sources Commitment (and the other persons committing Definitive Debt Agreements) and not take or fail to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to take any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner action that would reasonably be expected to (x) prevent or delay or prevent the funding availability of the Committed Financing on the terms and conditions contemplated by the Financing Commitments. In the event that all conditions contained in the Financing Commitments (other than, with respect to the Debt Financing, the availability of the Equity Financing) have been satisfied, Parent shall use its reasonable best efforts to cause the Lenders and the Sponsor to fund the Financing on the Closing Date, including, in the event of a breach or default by the other parties thereto, by enforcing in a timely manner its rights (including by seeking specific performance of the other parties thereto) under the Financing Commitments and/or the applicable definitive agreements therefor. If any portion of the Debt Financing (becomes unavailable or satisfaction if Parent becomes aware of any event or circumstance that would, or would reasonably be expected to, make any portion of the financing Debt Financing to become unavailable, in each case, on the terms and conditions contemplated in the Debt Financing Commitments, Parent shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources on terms that comply with the limitations on amendments, modifications and replacements of the Debt Financing Commitment Letter that are set forth in Constellation’s control) on the Closing Date first sentence of Section 5.12(c), and in an amount sufficient, together with the Equity Financing to pay all of the amounts payable under Article I or (y) adversely impact otherwise in connection with the ability of Constellation to enforce its rights against other parties Merger and all fees and expenses relating to the Debt Commitment Letter or consummation of the definitive agreements with respect thereto; provided that (i) Constellation Merger and the other transactions contemplated hereby, as promptly as practicable following the occurrence of such event. Parent shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written give the Company prompt notice of any material breach by any party to the Other Parties Financing Commitments of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take which Parent becomes aware or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more termination of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterFinancing Commitments.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Constellation Buyer shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable use its commercially reasonable efforts to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth in the Debt Commitment Letter, including using commercially reasonable best efforts to: (i) maintain in effect enter into definitive agreements regarding the Debt Commitment Letter and comply with its obligations thereunderFinancing; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter timely satisfy (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of) all conditions in such definitive agreements within Buyer’s control; and (iii) consummate the Debt Financing contemplated by the Debt Commitment Letter at the Closing. Buyer shall enforce promptly its rights under the Debt Commitment Letter. Without the prior written consent of Seller, Buyer shall not, and shall not permit any financing of its Affiliates to, take or fail to take any action or enter into any transaction that could reasonably be expected to materially impair, delay or prevent consummation of the Debt Financing contemplated by the Debt Commitment Letter. In the event any portion of the Debt Financing expires or is terminated or otherwise becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter that are Letter, Buyer shall notify Seller promptly (and in any event within Constellation’s control two Business Days) in writing of such unavailability and the reasons therefor and shall thereafter use its commercially reasonable efforts to obtain alternative financing (but excluding any condition where the failure “Alternative Financing”), including from alternative sources on terms no less favorable to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions Buyer than those set forth in the Debt Commitment Letter, to consummate as promptly as practicable following the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in occurrence of such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expensesevent. Constellation Buyer shall keep the Other Parties Seller informed on a reasonably current basis in reasonable detail of the status of its efforts and those of its Subsidiaries to arrange the Debt Financing or any Alternative Financing and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, material amendment or material modification to be made to, or to any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have without the effect prior written consent of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions Seller. Buyer shall provide prompt notice to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of Seller upon receiving the Debt Commitment Letter in a manner that would reasonably be expected Financing or any Alternative Financing and shall furnish to (x) delay or prevent the funding Seller correct and complete copies of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letterthereto upon their execution.
Appears in 1 contract
Samples: Purchase Agreement (Geo Group Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, Constellation shall takeBuyer has, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or will have prior to Closing, sufficient cash, available lines of credit or other sources of immediately available funds to enable it to pay the Closing Date on Purchase Price. To the extent that Buyer intends to finance any portion of the Purchase Price, Buyer has delivered to Seller true and correct copies of commitment letters from Buyer’s equity investors and lenders (the “Commitment Letters”) pursuant to which such investors and lenders have agreed, subject to the terms and conditions set forth therein, to provide the equity and debt financing for the transactions contemplated by this Agreement (the “Financing”). As of the date hereof, the Commitment Letters are in full force and effect without amendment or modification, are the Debt Commitment Lettervalid and binding obligations of each party thereto, including using reasonable best efforts to: (i) maintain have not been withdrawn or rescinded in effect the Debt Commitment Letter any respect, and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure all commitment fees required to be so satisfied is a direct result paid thereunder on or prior to the date of this Agreement have been paid and any commitment fees required to be paid thereunder after the date of the Other Parties’ failure to furnish information this Agreement will be paid in full. Except as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment LetterLetters, there are no other conditions to the consummation of the Financing and Buyer has no reason to believe that any condition to the Commitment Letters will not be satisfied or waived prior to the Closing Date. Buyer acknowledges and agrees that the obligation of Buyer to consummate the Committed Debt transactions contemplated by this Agreement is not conditioned upon the closing of the Financing, Buyer’s receipt of the proceeds of the Financing at or prior Buyer’s ability to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be finance or pay the Debt Payoff Amount Purchase Price and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis that any failure of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it Buyer to consummate the Transactions, including paying transactions contemplated by this Agreement as a result of the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter foregoing shall constitute a material breach by Buyer of this provision Agreement and entitle Seller to receive the Debt Commitment Letter may be amended Deposit pursuant to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterSection 10.5.
Appears in 1 contract
Samples: Asset Purchase Agreement (Clear Channel Communications Inc)
Financing. (a) Subject Each of Parent and Merger Sub shall use, and shall cause its Affiliates to the terms and conditions of this Agreementuse, Constellation shall reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain or cause the Financing on the terms (including, if applicable, as related to be obtainedthe “market flex” provisions) and subject only to the conditions set forth in the Financing Letters, including using reasonable best efforts to (i) maintain in effect and comply with the Financing Letters and the definitive agreements relating to consummatethe Financing, including the Committed payment of related fees and expenses in connection therewith as and when due and payable, until the transactions contemplated by this Agreement are consummated, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing on or prior the terms (including, if applicable, as related to the Closing Date on “market flex” provisions) and subject only to the terms and conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy (and cause its Affiliates to satisfy) on a timely basis, or obtain a waiver of, any financing basis all conditions to funding applicable to Parent and its Affiliates in the Debt Commitment Financing Letters and the definitive agreements related thereto (or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Financing Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(cor such definitive agreements related thereto)); , (iv) upon the satisfaction of the financing conditions set forth in Article VII (other than those conditions that by their nature are to be satisfied at the Debt Commitment LetterClosing, but subject to the fulfillment or waiver of such conditions), consummate the Committed Debt Financing at or prior to the ClosingClosing Date, including using its (and causing its Affiliates to use) reasonable best efforts to cause the Debt Financing Sources lenders and the other persons Persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with and (v) enforce its rights under the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than Financing Letters and the amount that would be required definitive agreements relating to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation Parent shall not, and shall not permit any of its Affiliates to, take any action not otherwise required under this Agreement that is a breach of, or agreewould result in termination of, any of the Financing Letters. Parent, Merger Sub and the Guarantors shall cause its Subsidiaries not not, without the prior written consent of the Company, agree to or permit any termination of or agreeamendment, to any termination, amendment supplement or modification to be made to, or grant any waiver of any provision under, the Financing Letters or any replacement of, any of the Debt Commitment Letter definitive agreements relating to the Financing if such termination, amendment, modificationsupplement, modification or waiver or replacement would (AA)(1) reduces (or would have the effect of reducing) reduce the aggregate amount of any portion of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount except by operation of the “market flex” provisions as in effect on the date of this Agreement) or (2) reduce the amount of Equity Financing unless the Debt Financing; Financing is increased by a corresponding amount no later than the date of such amendment, modification or waiver and, after giving effect thereto, the representations and warranties set forth in Section 4.5 shall be true and correct, (B) imposes impose new or additional conditions precedent to the availability of the Financing or otherwise expandsexpand, amends amend or modifies modify in any manner adverse to the interests of the Company any of the conditions precedent to the receipt of Committed Debt FinancingFinancing as set forth in the Financing Letters, or otherwise expandsexpand, amends amend or modifies modify any other provision of the Debt Commitment Letter Financing Letters in a manner that would reasonably be expected to (x) delay or prevent or make less likely to occur the funding of the Committed Debt Financing (or satisfaction of the financing conditions in to the Debt Commitment Letter that are in Constellation’s controlFinancing) or the completion of the Transactions on the Closing Date or (yC) adversely impact the ability of Constellation Parent, Merger Sub or the Company, as applicable, to enforce its rights against other parties to the Debt Commitment Letter Financing Letters or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties Financing on the terms and conditions contained in the Financing Letters. Parent shall deliver to the Company true and complete copies of any termination, amendment, modification, supplement, consent or waiver to or replacement it under any Financing Letter or its Subsidiaries proposes the definitive agreements relating to take the Financing promptly upon execution thereof. Subject to the limitations set out in this clause (a), Parent and Merger Sub may amend, supplement, modify or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in replace the Debt Commitment Letter shall constitute a breach as in effect at the date of this provision and Agreement solely to add or replace lenders, lead arrangers, bookrunners, syndication agents, managers or similar entities who had not executed the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letterdate of this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Endurance International Group Holdings, Inc.)
Financing. (a) Subject The Purchaser shall use, and shall cause its Affiliates to the terms and conditions of this Agreementuse, Constellation shall its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, done all things necessary, proper or advisable to obtain or cause to be obtained, arrange and to consummate, consummate the Committed Debt Financing on (or prior to the Closing Date any Alternative Financing) on the terms and conditions described in the Debt Financing Agreements and to cause the conditions precedent described in the Debt Commitment Letter to be satisfied in a timely basis, including using its commercially reasonable efforts to (i) maintain in effect the Debt Financing Agreements (including by complying with so-called “flex” provisions) until the funding of the Debt Financing at or prior to Closing, (ii) satisfy on a timely basis (or obtain a waiver of) all conditions and covenants applicable to the Purchaser to obtaining the Debt Financing at Closing as set forth therein, (iii) negotiate, execute and deliver definitive agreements with respect to such Debt Financing on the terms and conditions (including the “flex” provisions) contemplated by the Debt Financing Agreements (and provide copies thereof to the Seller), (iv) fully pay any and all commitment fees or other fees required by the Debt Financing Agreements and (v) upon satisfaction of the conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain consummate the Debt Financing at or prior to Closing. In the event that the Purchaser becomes aware of any event or circumstance that makes procurement of all or any portion of the Debt Financing unlikely to occur in effect the manner or from the sources contemplated in, or pursuant to the terms and conditions of, the Debt Commitment Letter and comply with such Debt Financing or portion thereof is reasonably required for the Purchaser to consummate the transactions contemplated by this Agreement, the Purchaser shall reasonably promptly notify the Seller, and the Purchaser shall use its obligations thereunder; commercially reasonable efforts to obtain, as promptly as practicable following the occurrence of such event or circumstance, replacement financings in the form of commitments (iiother than amounts that are replaced by other funds available to the Purchaser) negotiate from alternate sources (the “Alternative Financing”) on terms and execute conditions that will enable the Purchaser to consummate the transactions contemplated by this Agreement and that are not materially less favorable in the aggregate to the Purchaser than those contained in the Debt Commitment Letter; provided, however, that such Alternative Financing Documents on terms shall not (i) be subject to any additional or modified conditions or other contingencies to the funding of the Financing than those contained in the Debt Commitment Letter or (including any “flex” provisions related thereto); (iiiii) satisfy otherwise be reasonably likely to impair or materially delay the Closing or the date on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause which the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expensesobtained. Constellation The Purchaser shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions deliver to the receipt Seller complete and correct copies of Committed Debt Financingall material amendments, or otherwise expandssupplements, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties modifications to the Debt Commitment Letter or and all agreements pursuant to which any Alternative Financing shall be made available to the definitive agreements with respect thereto; provided that (i) Constellation Purchaser. For purposes of this Agreement, the term “Debt Financing” shall not also be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of include any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted alternate Alternative Financing obtained by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount Purchaser and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any term “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter.
Appears in 1 contract
Financing. (a) Subject Parent shall use its commercially reasonable efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper necessary or advisable customary to arrange and obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth described in the Debt Commitment LetterFinancing Commitments, including using reasonable best efforts to: (iA) maintain maintaining in effect the Debt Commitment Letter and comply Financing Commitments, (B) satisfying on a timely basis all conditions applicable to Parent to obtaining the Financing, (C) entering into definitive Contracts with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents respect thereto on terms contained and conditions described in or contemplated by the Financing Commitments and related fee letter or with conditions to availability not materially less favorable in the Debt Commitment Letter aggregate to Parent (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control Financing Commitments and related fee letter) and (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (ivD) upon satisfaction of the financing conditions set forth in the Debt Commitment Letterevent that all conditions to the Transactions and the Financing have been satisfied, to consummate consummating the Committed Debt Financing at or prior to the Closing. In the event that all conditions to the Transactions and the Financing have been satisfied, including Parent shall use its commercially reasonable efforts to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt providing such Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date the Financing required to consummate the Transactions. Parent shall not agree to or permit any amendment, supplement or other modification of, or waive any of its rights under, any Financing Commitment or any definitive Contracts related to the Financing, in each case, without the Company’s prior written consent, except that Parent may amend any Financing Commitment and related fee letter (i) to reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto, (ii) to add lenders, arrangers, bookrunners, syndication agents or similar entities which have not yet executed the Financing Commitments as of the date hereof or (yiii) otherwise so long as the terms would not adversely impact the ability of Constellation Parent to enforce its rights against other parties to timely consummate the Debt Commitment Letter Transactions or the definitive agreements likelihood of consummation of the Transactions. Upon any such amendment, supplement or modification of the Financing Commitments in accordance with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to 5.14, the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any term “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Universal American Corp.)
Financing. (a) Subject Buyer shall use its commercially reasonable efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, arrange and to consummate, consummate the Committed Debt Financing on or prior to at the Closing Date on the terms and conditions set forth in the Debt Commitment LetterFinancing Commitments, including using its commercially reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; and maintain the Financing Commitments in effect, (ii) negotiate and execute enter into definitive agreements with respect to the financing, (iii) comply with and perform the obligations applicable to it pursuant to the Financing Commitments, (iv) draw down on and consummate the financing if the conditions to the availability of the Financing have been satisfied or waived, including using its commercially reasonable best efforts to enforce its rights under any Financing Commitments and cause any Debt Financing Documents on terms contained in Sources party to the Debt Commitment Letter Financing Commitments to fund the Financing at the Closing, and (including any “flex” provisions related thereto); (iiiv) satisfy on a timely basis, or obtain a waiver of, any basis all conditions applicable to the financing conditions in the Debt Commitment Letter such definitive agreements that are within Constellation’s control (but excluding its control. If any condition where the failure to be so satisfied is a direct result of any portion of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at expires or terminates or otherwise becomes unavailable prior to the Closing, Buyer shall use its commercially reasonable efforts to arrange for and obtain as promptly as practicable following the occurrence of any such event alternative financing (the “Alternative Financing”) in an amount sufficient to consummate the transactions contemplated hereby and perform all of its obligations hereunder on terms (unless otherwise acceptable to Buyer) and conditions that are not materially less favorable or more onerous (including to cause imposition of new conditions or expansion of existing conditions), in the Debt aggregate, than those set forth in the Financing Sources Commitments, it being understood that if Buyer proceeds with any Alternative Financing, Buyer and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would Company shall be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions subject to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter same obligations with respect to such Alternative Financing as set forth in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties this Agreement with respect to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Constellation Buyers shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable use reasonable efforts to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and subject to the conditions set forth described in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply negotiate in good faith and enter into definitive agreements with its obligations thereunder; respect to the Financing (iiA) negotiate on the terms and execute subject to the Debt Financing Documents on terms contained conditions reflected in the Debt Commitment Letter or (including B) on other terms that are acceptable in good faith to Buyers, provided that such terms do not contain any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions to funding that are not set forth in the Debt Commitment Letter that are within Constellation’s control and otherwise would not reasonably be expected to delay the Closing in any material respect; (but excluding any condition where the failure ii) comply on a timely basis with all covenants, and satisfy on a timely basis all conditions, required to be so complied with or satisfied by Buyers in the Debt Commitment Letter and in such definitive financing agreements; (iii) cause the Financing to be consummated at such time or from time to time as is a direct result of any of the Other Parties’ failure necessary for Buyers to furnish information as required satisfy its obligations under Section 6.15(c))this Agreement; (iv) upon satisfaction pay in a timely manner any and all commitment or other fees that become payable by Buyers under the Debt Commitment Letter following the date hereof, to the extent that the failure to pay such fees would reasonably be expected to adversely impact the availability of the financing thereunder; (v) obtain rating agency approvals to the extent required to obtain the Financing; and (vi) enforce its rights under the Debt Commitment Letter or the definitive financing agreements, as applicable; provided, however, that, notwithstanding anything to the contrary contained herein, (1) Buyers shall have the right to substitute other debt or equity financing for all or any portion of the Financing from the same or alternative financing sources so long as such substitute financing is subject to funding conditions that are not materially less favorable to Buyers than the funding conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources Letter and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in so long as such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, substitute financing would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to delay the Closing in any material respect and (x2) delay Buyers shall not be required to, and Buyers shall not be required to cause any other Person to, commence, participate in, pursue or prevent the funding defend any suit, action or proceeding against or involving any of the Committed Debt Persons that have committed to provide any portion of, or otherwise with respect to, the Financing. In the event any alternative or substitute financing is obtained by Buyers in accordance with the terms of this Section 7.8(a) (the “Alternative Financing”), references herein to the Financing (or satisfaction including, for avoidance of doubt, the references in this Section 7.8, but excluding references in Section 6.4 shall be deemed to refer to the Alternative Financing, and if a new financing conditions commitment letter is entered into in connection with such Alternative Financing (the Debt “New Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties Letter”), references herein to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any terminationincluding, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor references in this Section 7.8, but excluding the exercise references in Section 6.4) shall be deemed to refer to the New Commitment Letter. Buyers will provide the Company with a copy of any “flex” provision in the Debt New Commitment Letter shall constitute a breach of this provision and obtained by Buyers in connection with an Alternative Financing as promptly as practicable after the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letterexecution thereof.
Appears in 1 contract
Samples: Equity Purchase Agreement (Kapstone Paper & Packaging Corp)
Financing. (a) Subject Purchaser shall use its reasonable best efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date as promptly as reasonably practicable on the terms and subject only to the conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expensesCommitments. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation Purchaser shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or any replacement ofwaivers which, any individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Debt Commitment Letter if such terminationFinancing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, amendmentwhich consent shall not be unreasonably withheld, modificationconditioned or delayed. Without limiting the generality of the foregoing, waiver or replacement Purchaser shall use reasonable best efforts to (Ai) reduces maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or would have obtain the effect of reducingwaiver of) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional all conditions or otherwise expands, amends or modifies any of the conditions applicable to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions Purchaser in the Debt Commitment Letter Financing Commitments that are in Constellation’s controlwithin its control and otherwise comply with its covenants and other obligations thereunder, (iii) on negotiate with the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against Lenders and other third parties to the Debt Commitment Letter or the and enter into definitive agreements with respect theretoto the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided provided, that (i) Constellation Purchaser shall not be deemed required to have violated this Section 6.15(a) if Constellation agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall have (A) provided prior written notice inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the generality of the foregoing, Constellation shallPurchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall cause its applicable Subsidiary toapply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, take all actions that Purchaser shall not be required to enforce its rights under agree to terms and conditions with respect to any alternative financing that are, in the Debt Commitment Letteraggregate, including as may be directed by one or more of materially less favorable in any material respect to Purchaser than those set forth in the Other Parties in writing, to the extent consistent with the Debt Commitment LetterFinancing Commitments.
Appears in 1 contract
Samples: Asset Purchase Agreement (Nationstar Mortgage Holdings Inc.)
Financing. (a) Subject to the terms Each of Parent and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtainedAcquisition Sub shall, and shall cause its Subsidiaries to consummate, use reasonable best efforts to arrange and obtain the Committed Debt proceeds of the Financing on or prior to the Closing Date on the terms and conditions set forth described in the Financing Commitments (including any “flex” provisions applicable to the Debt Commitment LetterFinancing), including using (and causing its Subsidiaries to use) their respective reasonable best efforts to: (i) comply with and maintain in full force and effect the Debt Commitment Letter Financing Commitments in accordance with the terms and comply with its obligations thereunder; conditions thereof, (ii) negotiate enter into definitive agreements with respect thereto on the terms and execute the Debt Financing Documents on terms conditions contained in the Debt Commitment Letter Financing Commitments (including any “flex” provisions related theretoapplicable to the Debt Financing); , which agreements shall be in effect as promptly as practicable after the date hereof, but in no event later than the Closing, (iii) satisfy on a timely basis, basis (or obtain a waiver of) all conditions applicable to Parent, any financing conditions Acquisition Sub or their respective Subsidiaries in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where or definitive agreements entered into with respect to the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(cDebt Commitment Letter)); , (iv) upon subject to the satisfaction of the financing all conditions set forth in the Debt Commitment LetterLetter and all conditions to the consummation of the Closing have occurred, solely to the extent necessary, enforce its rights under the Debt Commitment Letter in the event of a breach by any Debt Financing Source that impedes or delays (or could reasonably be expected to impede or delay) the Closing and, if necessary, seek specific performance of the Financing Sources of their obligations thereunder and (v) draw down upon and consummate the Committed Debt Financing at or prior to the Closing. Notwithstanding anything to the contrary contained in this Agreement, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing nothing contained in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation this Section 6.11 shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agreerequire, and in no event shall cause its Subsidiaries not the reasonable best efforts of Parent or Acquisition Sub be deemed or construed to permit require, Parent or agree, Acquisition Sub to seek the Equity Financing from any termination, amendment or modification to be made source other than those counterparty to, or in any waiver amount in excess of that contemplated by, the Equity Commitment Letter. Neither Parent nor its Affiliates shall agree to any provision underamendments, supplement or other modifications to, obtain any replacement of, or grant any waivers of, any condition or other provision of the Equity Commitment Letter without the prior written consent of the Company. Neither Parent nor its Affiliates shall agree to any amendments, supplement or other modifications to, obtain any replacement of, or grant any waivers of, any condition or other provision under the Debt Financing (other than pursuant to any flex provisions set forth in the Debt Commitment Letter Letter) without the prior written consent of the Company if such terminationamendments, amendment, modification, waiver modifications or replacement waivers (Ai) reduces (or would have the effect of reducing) reduce the aggregate amount of the Committed net proceeds of the Debt Financing (other than as a result of imposition of any original issue discount permitted to be imposed on the date hereof, but including by changing the amount of fees or other amounts to be paid (including any modification to the original issue discount as in effect on the date hereof) with respect to the Debt Financing; or ), (Bii) imposes would impose new or additional conditions or otherwise expandsexpand, amends amend or modifies modify any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of under the Debt Commitment Letter in a manner or (iii) that would or would reasonably be expected to (x) prevent, delay or prevent impair the funding ability of Parent to consummate the Committed Debt Financing (or satisfaction of Merger and the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date other transactions contemplated by this Agreement or (y) adversely impact the ability of Constellation Parent or Acquisition Sub to enforce its rights against the other parties to the Debt Commitment Letter Financing Commitments. Prior to a termination of this Agreement in accordance with the terms of Article VIII, Parent shall not permit, release or consent to the withdrawal, termination, repudiation or rescission of the Financing Commitments or any definitive agreements agreement with respect thereto; provided that (i) Constellation to the Financing and shall not be deemed release or consent to have violated this Section 6.15(a) if Constellation shall have (A) provided the termination of the obligations of any Financing Source under the Financing, in each case, without the prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more consent of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterCompany.
Appears in 1 contract
Financing. (af) Subject Notwithstanding anything contained in this Agreement to the terms contrary, the Purchaser expressly acknowledges and conditions agrees that the Purchaser’s obligations under this Agreement are not conditioned in any manner whatsoever upon the Purchaser or any Designated Affiliate obtaining any financing and any failure by the Purchaser to consummate either Closing when otherwise required under this Agreement arising from the failure or inability of the Purchaser to obtain financing will be deemed intentional and material for the purposes of this Agreement, Constellation shall take. Neither the Purchaser nor any of its Affiliates shall, or cause to be takenshall permit, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, without the Committed Debt Financing on or prior to written consent of the Closing Date on the terms and conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver ofSeller, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision or remedy under, or any replacement ofreplace, any of the Debt Commitment Letter if such terminationLetter, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies in any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x1) materially delay or prevent either Closing Date or (2) materially delay or prevent the funding of the Committed Debt Financing financing (or satisfaction of the conditions to obtaining the financing). The Purchaser will keep the Seller apprised of all developments or changes relating to the financing conditions in contemplated by the Debt Commitment Letter. In the event that the Commitment Letter ceases to be in full force and effect at any time or the Lenders indicate any unwillingness to provide the financing contemplated thereby, or for any reason the Purchaser otherwise no longer believes in good faith that are in Constellation’s control) it or any Designated Affiliate will be able to obtain the financing contemplated thereby, then the Purchaser will promptly notify the Seller and use commercially reasonable efforts to obtain replacement financing arrangements or commitment letters on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties terms no less favorable to the Debt Purchaser, taken as a whole, as soon as reasonably practicable. The term “Commitment Letter Letter” shall include such documents as permitted by this Section 5.5 to be amended, modified or replaced, and the definitive agreements with respect thereto; provided that (i) Constellation term “Lenders” shall not be deemed to have violated include the lenders thereunder, in each case from and after such amendment, modification or replacement. Notwithstanding anything to the contrary in this Section 6.15(a) if Constellation Agreement, the Purchaser shall have (A) provided prior written notice no obligation to enforce any rights it may have under the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and by bringing an action, suit or proceeding against the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterLender.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior Prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agreeCompany shall, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, and shall use its reasonable best efforts to cause the Company Representatives to, provide all cooperation reasonably requested by Purchaser in connection with obtaining equity commitments from Persons that will either be investing in Purchaser or any waiver of any provision underwill be acquiring Purchased Stock from the Company pursuant to this Agreement (the “Equity Commitments”), or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that including (i) Constellation shall not be deemed to have violated this Section 6.15(aparticipation in a reasonable number of meetings, presentations and due diligence sessions, (ii) if Constellation shall have assisting with the preparation of materials for offering documents, private placement memoranda and similar documents required in connection with obtaining the Additional Equity Commitments (A) provided prior written notice to the Other Parties of any terminationcollectively, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a“Offering Materials”) and (Biii) providing any interim financial information provided to management of the parties reasonably agree that, taking into account such termination, amendment, modification, waiver Company and its Subsidiaries in the ordinary course of business. Purchaser and Badger Capital shall use their reasonable best efforts to cause the Persons who are or replacement, New Polaris will have at become party to Equity Commitments to comply with the Closing funds available to it that are sufficient to enable it terms thereof in order to consummate the Transactions, purchase of the Purchased Stock prior to the date specified in Section 7.1(c) (including paying by taking reasonable enforcement action to cause such Persons providing such Equity Commitments to fund the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if amounts contemplated thereby in accordance with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sourcesterms thereof). Constellation shall promptly deliver Notwithstanding anything to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting contrary in the foregoing, Constellation shall, the Company acknowledges and understands that the Equity Commitments will be made subject to the satisfaction of all conditions precedent to Purchaser’s obligations under this Agreement set forth in Section 6.1 and that Purchaser shall cause its applicable Subsidiary to, take all actions required in no event be obligated to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterEquity Commitments if such conditions precedent are not completely satisfied.
Appears in 1 contract
Samples: Stock Purchase Agreement (Anchor Bancorp Wisconsin Inc)
Financing. (a) Subject True and complete copies of the Commitment Letters have been provided to Holdings, which, assuming the terms closing of the financing transactions contemplated thereby, provide the Purchaser sufficient funds to provide the full amount of cash equity and conditions debt proceeds required to consummate the Contemplated Transactions and to pay related fees and expenses (the “Financing”). As of the date of this Agreement, Constellation shall takethe Commitment Letters, in the form so delivered, are valid and in full force and effect, and the Purchaser has no reason to believe that the Financing contemplated by such Commitment Letters will not be available. As of the date of this Agreement, no event has occurred which, with or cause without notice, lapse of time or both, would constitute a default of the Purchaser under the Commitment Letters. The Purchaser has fully paid any and all commitment fees or other fees required by the Commitment Letters to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, paid as of the Committed Debt Financing on or prior to the Closing Date on the terms and conditions date hereof. Except as set forth in the Debt Commitment LetterLetters, including using reasonable best efforts to: (i) maintain in effect there are no conditions precedent to the obligations of the lenders party to the Debt Financing Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the equity investors party to the Equity Financing Commitment Letters to provide the Financing contemplated by the Commitment Letters or that would permit the lenders party to the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basisand the equity investors party to the Equity Financing Commitment Letters to reduce the total amount of such Financing. Assuming the receipt of the proceeds contemplated under the Commitment Letters, the Purchaser has, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing shall have at or prior to the Closing, including sufficient immediately available funds to cause pay, in cash, all of the Debt Financing Sources consideration payable to the Seller as required by this Agreement, and the to make all other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing necessary payments in such amount which, taken together connection with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis purchase of the status of its efforts Shares and those of its Subsidiaries to arrange pay all related fees and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letterexpenses.
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Financing. (a) Subject Purchaser agrees that it is not a condition to the Closing or to any of its other obligations under this Agreement that Purchaser obtain financing for the transactions contemplated hereby. Purchaser has furnished Seller with a true and correct copy of the executed Debt Commitment Letter, dated as of the date hereof, between Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Bank of America, N.A. (together with any other persons added as parties to the Debt Commitment Letter in accordance with the terms thereof and this Agreement, the “Debt Financing Sources”) and excerpts of those portions of each 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 this Agreement, Constellation shall take, or cause the financing to be takenprovided by such commitment letter (such commitment letter, including all actions exhibits, schedules, annexes and amendments thereto and each such fee letter and engagement letter, collectively, the “Debt Commitment Letter”). The Debt Commitment Letter is not subject to doany conditions or other contractual contingencies other than as set forth therein and is binding and, or cause on the date hereof, in full force and effect. All commitments and other fees required to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, paid under the Committed Debt Financing on or Commitment Letter prior to the Closing Date date hereof have been paid, and as of the date hereof, Purchaser has no knowledge of any fact or occurrence existing on the terms and conditions date hereof that makes any of the assumptions or any of the statements set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner inaccurate that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in cause the Debt Commitment Letter that are in Constellation’s control) on to be ineffective. Assuming no breach or default by Seller under this Agreement and based upon facts and events known by Purchaser as of the Closing Date or (y) adversely impact date of this Agreement, Purchaser is not aware of the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties existence of any terminationfact or event as of the date of this Agreement that would reasonably be expected to cause such conditions to funding (including any such conditions that relate to conditions precedent, amendmentrepresentations and warranties, modification, waiver covenants or replacement it or its Subsidiaries proposes to take or events of default under any other event, fact or circumstance that would be restricted by the foregoing provisions debt agreements of this Section 6.15(aPurchaser) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Lettersatisfied.
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Financing. If, at any time after the date of this Agreement, the PropCo Buyer does not have unrestricted cash, cash equivalents or marketable securities together with available borrowings under its existing revolving credit agreements or other lines of credit sufficient to pay (a) Subject the Real Estate Purchase Price and all other necessary fees, expenses and other amounts payable by the PropCo Buyer in connection with the consummation of the Transactions and (b) the amount required to pay the purchase price and any related fees and expenses in connection with any executed acquisition transactions pending as of the date of this Agreement (collectively, the “PropCo Buyer Required Amount”), Seller may request in writing that PropCo Buyer obtain an executed commitment letter from one or more financing sources pursuant to which they have committed, subject solely to the terms and conditions of this Agreementtherein (which terms and conditions shall be reasonably acceptable to the Seller), Constellation shall taketo provide, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummateprovided, the Committed Debt Financing on PropCo Buyer with debt financing in an amount sufficient, when taken together with unrestricted cash, cash equivalents or prior marketable securities together with available borrowings under its existing revolving credit agreement, to fund the Closing Date on the terms and conditions set forth in the PropCo Buyer Required Amount (a “Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect ”); provided that the PropCo Buyer shall not be obligated to obtain a Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute in an amount greater than the Debt Financing Documents on terms contained in Real Estate Purchase Price if the sole use of proceeds for such Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basisis the payment of the Real Estate Purchase Price. Upon receiving such written request, or PropCo Buyer shall obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellationfifteen (15) Business Days of PropCo Buyer’s control (but excluding any condition where the failure to be so satisfied is a direct result receipt of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenseswritten request. Constellation The PropCo Buyer shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any promptly after receipt of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions provide to the receipt of Committed Debt FinancingSeller true, or otherwise expands, amends or modifies any other provision correct and complete copies of the Debt Commitment Letter Letter. Unless otherwise agreed by the Seller expressly in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the writing, any Debt Commitment Letter that are shall remain in Constellation’s control) place on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at committed terms until the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for Date. For the avoidance of doubt, neither the existence nor obligations of the exercise of Seller to cooperate in connection with any “flex” provision Financing as set forth in the Section 6.19 shall apply to any Debt Commitment Letter shall constitute a breach of requested by Seller pursuant to this provision and the Debt Commitment Letter may be amended to add additional Debt Financing SourcesSection 6.24. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting Notwithstanding the foregoing, Constellation shallin the event that PropCo Buyer receives any written request from Seller pursuant to this Section 6.24 and PropCo Buyer is subsequently able to reasonably demonstrate to Seller that it has sufficient cash, cash equivalents or marketable securities together with available borrowings under its existing revolving credit agreements or other lines of credit in amount equal to or greater than the PropCo Buyer Required Amount, then any such Seller request shall be automatically be deemed to have been fulfilled and all of PropCo Buyer’s obligations pursuant to this Section 6.24 shall cause its applicable Subsidiary to, take all actions required automatically be deemed to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Lettersatisfied.
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Financing. (a) Subject Purchaser shall use commercially reasonable efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtainedarrange, and to consummateclose concurrently with the Closing, the Committed Debt Financing on or prior and subject to the Closing Date on the terms and conditions set forth described in the Debt Commitment LetterLetters, including using commercially reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) to negotiate and execute enter into definitive agreements with respect to the Debt Financing Documents on the terms (including, to the extent required by the Debt Financing Sources, the “market flex” provisions) and subject only to the conditions contained in the Debt Commitment Letter Letters, (including any “flex” provisions related thereto); (iiiii) to satisfy on a timely basisbasis all conditions applicable to Purchaser in such definitive agreements, or obtain a waiver of, any financing (iii) to comply with its obligations under the Debt Commitment Letters and (iv) assuming all conditions precedent in the Debt Commitment Letter Letters have been satisfied (or duly waived), consummate or cause the consummation of the Debt Financing contemplated by the Debt Commitment Letters at the Closing. Purchaser shall, and shall cause its Affiliates to, refrain from taking, directly or indirectly, any action that are within Constellation’s control (but excluding any condition where is reasonably likely to result in the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth contained in the Debt Commitment Letter, Letters or in any definitive agreement related to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and to be satisfied (or duly waived) or the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together be available concurrently with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, Closing. Purchaser shall give Parent prompt notice upon becoming aware of any fact that would reasonably be no less than expected to give rise to any material breach by any party to the Debt Commitment Letters or any breach that could impact the amount that would be required to be pay or availability of financing. Purchaser shall, upon the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed reasonable request of Parent, provide Parent on a reasonably current prompt basis and in reasonable detail of the status of its efforts and those of its Subsidiaries to arrange the Debt Financing and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any material provision or remedy under, or any replacement of, any of the Debt Commitment Letter Letters if such termination, amendment, modification, waiver or replacement remedy would reasonably be expected to impact or delay in any material respect the ability of Purchaser to consummate the transactions contemplated hereby. For the avoidance of doubt, Purchaser (Ax) reduces may agree to or permit any amendment, supplement or other modification of, or waive any of its rights under, any Debt Commitment Letters or any definitive agreements related to the Debt Financing to the extent such amendment, supplement, modification or waiver would not (or would have the effect of reducingi) reduce the aggregate amount of the Committed Debt Financing; Financing (or the cash proceeds available therefrom) below the Required Amount, (Bii) imposes impose any material new or additional conditions or otherwise expands, amends or modifies any precedent to the availability and/or initial funding of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends adversely amend or modifies modify any other provision of the Debt Commitment Letter existing conditions precedent thereto, in a manner that would reasonably be expected to (x) delay or prevent the funding result in any of the Committed Debt Financing (or satisfaction of the financing conditions precedent set forth in the Debt Commitment Letter that are in Constellation’s control) Letters not being satisfied, or the Debt Financing not being available to the Purchaser, on the Closing Date or (yiii) adversely impact otherwise reasonably be expected to materially prevent, delay or impair the availability of any of the Debt Financing or the ability of Constellation Purchaser to enforce its rights against other parties obtain the Debt Financing in order to consummate the Transactions at Closing, in each case, as compared to the Debt Commitment Letter or Letters as in effect on the definitive agreements with respect thereto; provided that date hereof and (iy) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shallterminate, or shall cause its applicable Subsidiary topermit the termination of, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including unless such Debt Commitment Letter is replaced with a new commitment in accordance with paragraph (b) below that, were it structured as may be directed by one or more an amendment to an existing Debt Commitment Letter, would satisfy the requirements of the Other Parties foregoing clause (x). Upon any such amendment, supplement or modification of any Debt Commitment Letters in writingaccordance with this Section 5.14(a), Purchaser shall provide a copy thereof to Seller, and references to the extent consistent with “Debt Commitment Letters” shall include such documents as permitted to be amended, supplemented or modified under this Section 5.14(a), and references to the “Debt Financing” shall include the financing contemplated by the Debt Commitment LetterLetters as permitted to be amended, supplemented or modified under this Section 5.14(a).
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Samples: Purchase and Sale Agreement (Differential Brands Group Inc.)
Financing. (a) Subject The Buyer shall, and shall cause its affiliates to, use their commercially reasonable efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper appropriate or advisable to obtain or cause to be obtained, and to consummate, arrange the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth described in the Debt Financing Commitment Letter(provided that the Buyer may replace or amend the Financing Commitment to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Financing Commitments as of the date hereof, or otherwise replace or amend the Financing Commitment so long as (a) after such actions, the Financing Commitment does not include any additional conditions precedent that are not contained in the Financing Commitment provided to the Sellers as of the date of this Agreement, and (b) such actions are not reasonably likely to delay, or diminish the likelihood of, the Buyer obtaining the Financing (clauses (a) and (b) together being referred to as the “Financing Modification Requirements”; for purposes of this Agreement, the term “Financing Commitment” shall be deemed to include any such replacement or amended financing), including using commercially reasonable best efforts to: to (i) maintain in effect the Debt Financing Commitment Letter and comply with its obligations thereunder; or any Alternative Financing (as defined below), (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basisbasis all conditions applicable to the Buyer to obtaining the Financing set forth therein, (iii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Financing Commitment or obtain a waiver ofany Alternative Financing, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); and (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing on the terms and conditions contemplated by the Financing Commitments or any Alternative Financing at or prior to the Closing, including to cause . In the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis event any portion of the status of its efforts Financing becomes unavailable on the terms and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions contemplated in the Debt Commitment Letter that are in Constellation’s control) on Financing Commitment, the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation Buyer shall, and shall cause its applicable Subsidiary affiliates to, take all actions required use their commercially reasonable efforts to enforce its rights under arrange to obtain alternative financing from alternative sources in an amount sufficient to consummate the Debt transactions contemplated by this Agreement on terms and conditions that are not materially less beneficial to the Buyer than those contained in the Financing Commitment Letter, including as may be directed by one or more in effect on the date of this Agreement as determined in the reasonable good faith judgment of the Other Parties in writing, to the extent Buyer and consistent with the Debt Commitment LetterFinancing Modification Requirements (any such alternative financing actually obtained by the Buyer, “Alternative Financing”) as promptly as practicable following the occurrence of such event.
Appears in 1 contract
Financing. (a) Subject Each Purchaser shall use, and shall cause each of its respective Affiliates to the terms and conditions of this Agreementuse, Constellation shall their respective Reasonable Best Efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain or cause to be obtained, and to consummate, the Committed Debt proceeds of the Financing on or prior to the Closing Date on the terms and conditions, taken as a whole (including any “flex” provisions), described in the Commitment Letters, including executing and delivering all such documents and instruments as may be reasonably required thereunder and (i) using (and causing its Affiliates to use) their respective Reasonable Best Efforts to (v) comply with and maintain in effect the Debt Financing and the Debt Commitment Letter, (w) satisfy on a timely basis all terms, covenants and conditions set forth in the Debt Commitment LetterLetter and the Financing Agreements (including by consummating the Equity Financing pursuant to the terms of the Equity Commitment Letter and by paying any commitment fees or other fees or deposits required by the Commitment Letters or the Financing Agreements), including using reasonable best efforts to: (ix) maintain in effect accept (and comply with) to the fullest extent all “flex” provisions contemplated by the Debt Commitment Letter and comply the Financing Agreements to the extent such “flex” provisions are exercised in accordance with its obligations thereunder; the terms thereof, (iiy) negotiate and execute enter into definitive agreements with respect to the Debt Financing Documents on the terms contained in and conditions contemplated by the Debt Commitment Letter (including any escrow agreement entered into pursuant to Section 5.11(i), the “flex” provisions related thereto); Financing Agreements”) and comply with and maintain in effect the Financing Agreements and (iiiz) satisfy on a timely basisconsummate the Debt Financing as promptly as practicable but in any event no later than the Closing, or obtain a waiver of, any financing conditions in and (ii) enforcing its rights under the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth and Financing Agreements in the Debt Commitment Letter, to consummate event of a breach by the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to lenders under the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterAgreements.
Appears in 1 contract
Financing. (a) Subject The Controlling Shareholder shall use its commercially reasonable efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to obtain or cause to be obtained, and to consummate, consummate the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth described in the Debt Commitment LetterFinancing Agreement (or on other terms that would not adversely impact the ability of Controlling Shareholder to timely consummate the transactions contemplated by this Agreement), including using commercially reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) to satisfy on a timely basisbasis all covenants, or obtain a waiver ofterms and conditions applicable to the Controlling Shareholder in the Debt Financing Agreement that are within its control, any financing including the Disclosed Conditions. In the event that all conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure Financing Agreement required to be so satisfied is a direct result by the Controlling Shareholder have been satisfied, or upon funding, will be satisfied, in the Controlling Shareholder’s good faith judgment, the Controlling Shareholder shall use its commercially reasonable efforts to cause the Lender to fund the Debt Financing on the Financing Date and otherwise enforce its rights under the Debt Financing Agreement. The Controlling Shareholder shall not, and shall not permit any of its Affiliates to, without the prior written consent of the Company, take or fail to take any action or enter into any transaction, including any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing, that could reasonably be expected to materially impair, delay or prevent obtaining the Debt Financing. The Controlling Shareholder shall give the Company prompt notice of any material breach by any party under the Debt Financing Agreement of which the Other Parties’ failure Controlling Shareholder becomes aware or any communications from any Person to furnish information as required under Section 6.15(c)); (iv) upon satisfaction the effect that it may not provide any portion of the financing conditions set forth contemplated by the Debt Financing Agreement. In the event that any portion of the Debt Financing becomes unavailable in the manner or from the sources contemplated in the Debt Commitment LetterFinancing Agreement despite the Controlling Shareholder’s commercially reasonable efforts to obtain the Debt Financing, (i) Controlling Shareholder shall promptly notify the Company, and (ii) Controlling Shareholder shall use its commercially reasonable efforts to consummate the Committed Debt Financing at or prior arrange to the Closing, including to cause obtain any such portion of the Debt Financing Sources and from alternative sources, on terms that are no less favorable to the other persons committing Controlling Shareholder, as promptly as practicable following the occurrence of such event, including entering into definitive agreements with respect thereto. In connection with its obligations under this Section 6.9, the Controlling Shareholder shall be permitted to fund amend, modify or replace the Committed Debt Financing to fund Agreement; provided that the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation Controlling Shareholder shall not permit any replacement of, or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any material provision or remedy under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or Financing Agreement that would have be reasonably likely to cause any delay in the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any satisfaction of the conditions to the receipt of Committed Debt Financing, set forth in Article VII or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) prevent or materially impair or delay or prevent obtaining the funding Debt Financing as required by the Controlling Shareholder to meet its obligations under this Agreement. The Controlling Shareholder shall keep the Company reasonably informed of the Committed Debt Financing (or satisfaction status of the financing conditions in Controlling Shareholder’s efforts to arrange the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Acorn International, Inc.)
Financing. (a) Subject Each of the Buyer and Buyer Sub shall use its commercially reasonable efforts to obtain an executed commitment letter from one or more financial institutions in form and substance reasonably satisfactory to the terms Buyer and conditions the Sellers' Representative (the "DEBT COMMITMENT LETTER") to provide the Buyer and Buyer Sub with debt financing in an amount sufficient to satisfy all of the Buyer's and Buyer Sub's obligations under this AgreementAgreement and the transactions contemplated hereby (x) to pay the full amount of the payments due at the Closing, Constellation shall take, or cause (y) to refinance any Debt of the Company to be takenrefinanced and pay all fees, all actions penalties and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtainedpremiums related thereto, and (z) to consummate, pay all expenses in connection with the Committed Debt Merger and the transactions contemplated hereby and thereby (the "FINANCING"). Each of the Buyer and Buyer Sub shall use its commercially reasonable efforts to arrange the Financing on or prior to the Closing Date as promptly as practicable on the terms and conditions set forth described in the Debt Commitment Letter, including using commercially reasonable best efforts to: to (i) maintain in effect negotiate definitive agreements with respect thereto on the Debt Commitment Letter terms and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms conditions contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, (ii) satisfy on a timely basis all conditions applicable to the Buyer, Buyer Sub or any of their Affiliates in such definitive agreements that are within their or such Affiliates' control and (iii) consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of contemplated by the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have at Closing. In the effect of reducing) the aggregate amount event any portion of the Committed Debt Financing; or (B) imposes new or additional Financing becomes unavailable on terms and conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter., the Buyer and Buyer Sub shall each use its commercially reasonable efforts to obtain alternative financing, including from alternative sources, as promptly as practicable following the occurrence of such event (the "ALTERNATIVE DEBT FINANCING"). The Buyer or Buyer Sub shall give the Company prompt notice upon becoming aware of any breach by
Appears in 1 contract
Samples: Agreement and Plan of Merger (Deerfield Triarc Capital Corp)
Financing. (a) Subject Parent shall not agree to or permit any amendment, supplement or other modification of, or waive any of its rights under, any Financing Commitments or the definitive agreements relating to the terms Financing, if such amendment, supplement, modification or waiver reduces the aggregate amount of Financing or would reasonably be likely to delay or prevent the Closing or make any portion of the financing less likely to occur (provided that Parent may replace or amend the Debt Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitments as of the date hereof; Parent shall promptly provide notice to the Company of such replacement or amendment) and conditions of this Agreement, Constellation Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or the Financing on the terms and conditions described in the Financing Commitments, including using its reasonable best efforts to (i) negotiate and enter into the definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitments, (ii) satisfy on a timely basis all conditions applicable to Parent set forth therein and (iii) subject to the terms and conditions contemplated by the Financing Commitments, consummate the Financing contemplated by the Financing Commitments at the Closing, including using its reasonable best efforts to cause the lenders and any other Persons providing such Financing to be obtained, and fund the Financing required to consummate, consummate the Committed Merger at the Closing (including by enforcing its rights under the Financing Commitments). In the event that any portion of the Debt Financing on or prior to the Closing Date becomes unavailable on the terms and conditions set forth in the Debt Commitment LetterFinancing Commitments, including using other than due to the breach of representations and warranties or covenants of the Company or a failure of a condition to be satisfied by the Company, Parent shall promptly notify the Company and shall use its reasonable best efforts to: (i) maintain in effect to obtain any such portion from alternative sources, on terms not less favorable, taken as a whole, to Parent, that will still enable Parent to consummate the transactions contemplated by this Agreement, as promptly as practicable following the occurrence of such event. Parent shall deliver to the Company true and complete copies of all agreements pursuant to which any such alternative source shall have committed to provide Parent with any portion of the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basisFinancing. Parent shall refrain from taking, directly or obtain a waiver ofindirectly, any financing conditions action that would reasonably be expected to result in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the a failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth contained in the Debt Commitment Letter, to consummate the Committed Debt Financing at Commitments or prior in any definitive agreement related to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expensesFinancing. Constellation Parent shall keep the Other Parties Company informed on a reasonably current timely basis in reasonable detail of the status of its efforts and those of its Subsidiaries to arrange and consummate obtain the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter.
Appears in 1 contract
Samples: Escrow Agreement (Polymer Group Inc)
Financing. (a) Subject Buyer shall use its Reasonable Efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the debt financing described in the Debt Commitment Letter on the terms and conditions described in the Debt Commitment Letter (provided that Buyer may amend or modify the Debt Commitment Letter as long as the terms thereof would not adversely impact the ability of this AgreementBuyer, Constellation Seller or the Company to consummate the transactions contemplated hereby or delay the Closing Date), including using Reasonable Efforts to (i) maintain in effect the Debt Commitment Letter, timely pay any commitment fees that become due and payable in accordance with the terms of the Debt Commitment Letter, negotiate and enter into definitive agreements with respect to such debt financing on the terms and conditions reflected in the Debt Commitment Letter or on other terms no less favorable, in the aggregate, to Buyer, (ii) satisfy on a timely basis all conditions in such definitive agreements that are within its control, (iii) consummate such debt financing at or prior to Closing in accordance with the terms of the Debt Commitment Letter and (iv) enforce its rights to cause the lenders to provide such debt financing under the Debt Commitment Letter (including by taking enforcement action to cause such lender providing such debt financing to fund such financing). Buyer shall also use its Reasonable Efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to financing contemplated by the Closing Date on the terms and conditions set forth in the Debt Investor Commitment Letter, including using reasonable best efforts to: Reasonable Efforts to (i) maintain in effect the Debt Investor Commitment Letter and comply timely pay any commitment fees that become due and payable in accordance with its obligations thereunder; the terms of the Investor Commitment Letter, (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing basis all conditions applicable to Buyer in the Debt such Investor Commitment Letter that are within Constellation’s control its control, (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iviii) upon satisfaction of consummate the financing conditions set forth in contemplated by the Debt Investor Commitment Letter, to consummate the Committed Debt Financing Letter at or prior to the Closing, including Closing and (iv) enforce its rights to cause the Debt Financing Sources Investors to provide the financing contemplated under the Investor Commitment Letter (including by taking enforcement action to cause such Investors providing such financing to fund such financing). Buyer will retain all capital funded to Buyer pursuant to the Investor Commitment Letter and the other persons committing Debt Commitment Letter to satisfy its obligations to Seller hereunder until such obligations to Seller have been satisfied. Buyer will not, and will not consent to, the withdrawal, rescission or revocation of the Investor Commitment Letter, any changes in the parties thereto or the amounts they are committed to fund the Committed Debt Financing thereunder (it being understood that BBIFNA AIV Two, LP and Bxxxxxx & Bxxxx Xxxxx Pty Ltd may make arrangements and enter into agreements to fund the Committed Debt Financing at the effect any sale, transfer or disposition of their interests in Buyer immediately after Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis are permitted under Section 4(a)(i) of the status of its efforts and those of its Subsidiaries to arrange and consummate Shareholder Agreement), or the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any terminationalteration, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Investor Commitment Letter in a manner adverse to Seller, Buyer or the Company or that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation any of them to enforce its rights against other consummate the transactions contemplated hereunder or would delay the Closing Date, in each case above without the prior written consent of Seller. The parties to the Debt Investor Commitment Letter (other than Buyer) or their permitted assignees will be the definitive agreements with respect theretoonly owners of Buyer immediately after completion of the Closing. The Investor Commitment Letter may not be assigned (whether by operation of law, merger, consolidation or otherwise; provided that (iBxxxxxx & Bxxxx Infrastructure Limited may assign all or a portion of its rights and obligations under the Investor Commitment Letter to Affiliates it controls or to Bxxxxxx & Bxxxx Infrastructure Trust and Affiliates controlled by Bxxxxxx & Bxxxx Infrastructure Trust) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided without the prior written notice to consent of Seller. Notwithstanding Section 7.4, Buyer may not create, amend or supplement Section 5.5 of the Other Parties of any terminationBuyer’s Disclosure Schedule or create, amendment, modification, waiver amend or replacement it or its Subsidiaries proposes to take or any supplement other event, fact or circumstance disclosures in Buyer’s Disclosure Schedule that would be restricted by have the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Lettersame effect.
Appears in 1 contract
Samples: Purchase Agreement (Knight Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, Constellation Buyer shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth described in the Debt Commitment LetterCredit Facility, including using reasonable best efforts to: (i) maintain maintaining in effect the Debt Commitment Letter Credit Facility and, as applicable, any Supplemental Facility without amendment after the date hereof, (ii) negotiating, executing and delivering all documents required under the Credit Facility and, as applicable, any Supplemental Facility to borrow under the Credit Facility and, as applicable, any Supplemental Facility to receive the Financing or otherwise required with respect to the transactions contemplated hereby and by the Ancillary Agreements, (iii) satisfying on a timely basis all conditions applicable to the Financing in the Credit Facility and, as applicable, any Supplemental Facility that are within the control of Buyer and comply with its obligations thereunder; (ii) negotiate and execute under the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basisCredit Facility and, or obtain a waiver ofas applicable, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); Supplemental Facility, (iv) upon satisfaction of consummating the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in (v) ensuring sufficient availability thereunder such amount whichthat, when taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than at Closing and without delay for such availability, the amount Financing is sufficient to fulfill Buyer’s obligations under this Agreement and the Ancillary Agreements, and (vi) enforcing its rights under the Credit Facility and, as applicable, any Supplemental Facility in the event of a breach by the financing sources that would be required to be pay impedes or delays the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis Closing, including seeking specific performance of the status of parties thereunder. Buyer shall use its reasonable best efforts to cause the lenders and those of its Subsidiaries the other Persons providing such Financing to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) fund on the Closing Date the Financing required to consummate the transactions contemplated by this Agreement and the Ancillary Agreements (including, notwithstanding anything to the contrary in Section 7.1 of this Agreement, by taking enforcement action, including seeking specific performance, to cause such lenders and the other Persons providing such Financing to fund such Financing). If any portion of the Financing becomes unavailable or Buyer becomes aware of any event or circumstance that makes any portion of the Financing unavailable, in each case, on the terms and conditions contemplated in the Credit Facility and, as applicable, any Supplemental Facility and such portion is reasonably required to consummate the transactions contemplated by this Agreement and the Ancillary Agreements, Buyer shall use its reasonable best efforts to arrange and obtain alternative debt financing from the same and/or alternative financial institutions in an amount sufficient to consummate the transactions contemplated by this Agreement as promptly as practicable following the occurrence of such event; provided that, without limiting the provisions set forth at all times on and after the date of this Agreement, Buyer shall maintain, solely for use for its obligations under this Agreement, available borrowings under its Credit Facility in an amount not less than $250,000,000. Buyer shall give Seller prompt oral and written notice (but in any event not later than one (1) Business Day after the occurrence) of (x) any material breach by any party to the Credit Facility or, as applicable, any Supplemental Facility, (y) adversely impact any condition not likely to be satisfied or (z) any termination of the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of Credit Facility or, as applicable, any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take Supplemental Facility or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available obligations to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letterfund thereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Magellan Midstream Partners Lp)
Financing. (a) Subject Purchaser shall use its reasonable best efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper necessary or advisable to arrange and obtain or cause to be obtainedthe Purchaser Financing as promptly as practicable and, and to consummatein any event, the Committed Debt Financing on or prior to not later than the Closing Date Date, on the terms and conditions set forth described in the Debt Commitment LetterFinancing Commitments, including using its reasonable best efforts to: to (iA) maintain in effect the Financing Commitments, (B) satisfy on a timely basis all conditions in the Financing Commitments and the Definitive Financing Agreements applicable to Purchaser obtaining the Debt Commitment Letter Financing and comply with its obligations thereunder; applicable to Purchaser obtaining the Equity Financing, (iiC) negotiate and execute enter into definitive agreements with respect to the Debt Financing Documents on terms contained and conditions described in or contemplated by the Debt Commitment Letter Financing Commitments (including any “flex” provisions related thereto); contained therein) and definitive agreements with respect to the Equity Financing on terms and conditions described in or contemplated by the Equity Financing Commitments (iiiall such definitive agreements, collectively, the “Definitive Financing Agreements”) satisfy on a timely basisand (D) cause the Debt Financing Sources and the sources of the Equity Financing to fund, or obtain a waiver ofprovide, any financing conditions in as applicable, the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Purchaser Financing at or prior to the Closing. Notwithstanding the immediately foregoing sentence, including to cause Purchaser shall obtain the Debt Equity Financing Sources and contemplated by the other persons committing to fund the Committed Debt Equity Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit Commitments upon satisfaction or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt FinancingClosing in Article VI (other than those conditions that by their nature will not be satisfied until the Closing). Purchaser shall not agree to or permit any termination, amendment, supplement or other modification of, or otherwise expandswaive any of its rights under, amends or modifies any other provision of the Debt Commitment Letter Financing Commitments or Definitive Financing Agreements in a manner that (w) would result in terms less favorable to Purchaser in the aggregate as those contained in the Debt Financing Commitments, (x) would add any conditions precedent or other contingencies related to the funding of such Debt Financing that are not contained in the Debt Financing Commitments in effect on the date hereof, (y) would reasonably be expected to (x) prevent, materially impair or materially delay or prevent the funding consummation of the Committed such Debt Financing (or satisfaction of the financing conditions in transactions contemplated by this Agreement or by the Debt Commitment Letter that are in Constellation’s control) on the Closing Date Ancillary Agreements or (yz) would add any contractual limitation that would adversely impact the ability of Constellation the Purchaser to enforce enter into or perform its rights against other parties obligations under the Credit Support Agreement, in each case, without Seller’s prior written consent; provided that, it is understood and agreed that the Financing Commitments and/or the Definitive Financing Agreements may be amended, supplemented or otherwise modified (i) to correct immaterial typographical errors, (ii) to add agents or arrangers of the Debt Financing who had not executed the Debt Financing Commitments as of the date hereof or (iii) to assign or reassign titles or roles to, or between or among, any Debt Financing Sources party to the Debt Commitment Letter Financing Commitments. Upon any amendment, supplement, modification or waiver of the Financing Commitments or the definitive agreements Definitive Financing Agreements in accordance with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a5.16(a), (x) if Constellation the terms “Financing Commitments”, “Debt Financing Commitments”, “Equity Financing Commitments” and “Definitive Financing Agreements” as used in this Agreement (including as used in any definition incorporating such terms) shall have mean such documents as so amended, supplemented, modified or waived and (Ay) provided prior written notice to the Other Parties of terms “Purchaser Financing”, “Debt Financing” and “Equity Financing” as used in this Agreement (including as used in any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted definition incorporating such terms) shall mean the financing contemplated by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount Financing Commitments and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and SiriusEquity Financing Commitments, not to be unreasonably withheldas applicable, Constellation shallas so amended, supplemented, modified or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letterwaived.
Appears in 1 contract
Financing. Purchaser shall, and shall cause its Affiliates and its and their officers, directors, employees and representatives to, use their commercially reasonable efforts to (a) Subject satisfy all covenants and conditions precedent to the terms funding of the financings contemplated by the Commitment Letter and conditions to cause all representations and warranties of this Agreement, Constellation shall take, or cause Purchaser and its Affiliates contained in the Commitment Letter and in the definitive documents for the financings contemplated thereby to be taken, all actions true at such time(s) as are required under the terms of the Commitment Letter and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtainedsuch definitive documentation, and to consummate(b) arrange as promptly as practicable and, the Committed Debt Financing on or prior subject to the simultaneous consummation of the Closing Date on the terms and conditions set forth in herein and subject to the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to financing contemplated by the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at Commitment Letter by the Closing Date on terms and conditions in such amount which, taken together all material respects consistent with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on handterms of the Commitment Letter. Purchaser shall notify Seller if Purchaser becomes aware of any fact, occurrence or event that it believes would be no less than reasonably likely to prevent Purchaser or its Affiliates from consummating financing arrangements for the amount transactions contemplated hereby. Purchaser agrees with Seller that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agreeit will not, and shall will cause its Subsidiaries Affiliates not to permit or agree, to any termination, amendment or modification to be made to, voluntarily waive, release, modify, rescind, terminate or any waiver of any provision under, or any replacement of, otherwise amend any of the Debt Commitment Letter if such termination, amendment, modification, waiver material terms or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions contained in the Debt Commitment Letter Letter, other than changes that are in Constellation’s control) on do not adversely affect the Closing Date rights and obligations of Seller under this Agreement or (y) adversely impact the ability of Constellation Purchaser to enforce its rights against other parties satisfy the condition to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Closing described in Section 6.15(a) if Constellation shall have (A) provided 6.1.7, without prior written notice to the Other Parties consent of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and Seller (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, consent not to be unreasonably withheldconditioned, Constellation shall, withheld or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sourcesdelayed). Constellation shall promptly deliver Subject to the Other Parties copies third sentence of any such terminationSection 4.3.5, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and Purchaser covenants that it shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more identify a sufficient number of the Other Parties in writing, Employees for termination pursuant to the extent consistent with first sentence of Section 4.3.5 such that the Debt Commitment LetterTerminated Employee Obligations are at least equal to the Terminated Employee Obligation Threshold.
Appears in 1 contract
Samples: Stock Purchase Agreement (Consolidated Communications Texas Holdings, Inc.)
Financing. (a) Subject The Purchaser and Summit LLC shall use their respective reasonable best efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth described in the Debt Commitment Letter, including using reasonable best efforts to: to (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing basis all conditions applicable to Summit LLC in obtaining the Debt Commitment Letter that are within Constellation’s control Financing, (but excluding any condition where ii) negotiate, enter into and deliver the failure definitive agreements with respect to be so satisfied is a direct result of any of the Other Parties’ failure Debt Financing on the terms and subject only to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment LetterLetter (any such agreements, the “Definitive Debt Agreements”), (iii) comply with its covenants and other obligations in the Debt Commitment Letter or the Definitive Debt Agreements, as applicable, (iv) upon satisfaction of all of the conditions precedent under Section 6.01 and Section 6.02 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions), consummate or cause the Committed consummation of the Debt Financing at or prior to the ClosingClosing as set forth in Section 2.01, including (v) satisfy or obtain a waiver of on a timely basis all conditions that are applicable to cause Summit LLC in the Debt Financing Sources Commitment Letter and the other persons committing to fund the Committed Definitive Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay Agreements and (vi) fully enforce its rights under the Debt Payoff Amount and all transaction expensesCommitment Letter. Constellation Summit LLC shall keep not, without the Other Parties informed on a reasonably current basis prior written consent of the status of its efforts and those of its Subsidiaries Seller agree to arrange and consummate the Committed Debt Financing. Constellation shall not or permit or agreeany amendment, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment supplement or modification to be made to, or grant any waiver of any material provision or right under, or any replacement of, any of the Debt Commitment Letter or the Definitive Debt Agreements if such termination, amendment, modificationsupplement, modification or waiver or replacement would (Ax) reduces reasonably be expected to reduce (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; Financing such that the Purchaser would not have sufficient funds to pay the Initial Purchase Price on the Closing Date or (By) imposes impose new or additional conditions to the availability of the Debt Financing or otherwise expandsexpand, amends amend, supplement or modifies modify in a manner adverse to the interests of the Seller any of the conditions to the receipt of Committed Debt Financing, or otherwise expandsexpand, amends amend, supplement or modifies modify any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay materially or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in to the Debt Commitment Letter that are in Constellation’s controlFinancing) on the Closing Date or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, Summit LLC may amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as of the date of this Agreement so long as such amendment is in accordance with the Debt Commitment Letter as of the date hereof. The Purchaser or Summit LLC shall promptly deliver to the Seller copies of any amendment, replacement, supplement, modification or waiver to or under the Debt Commitment Letter or the Definitive Debt Agreements entered into in accordance with this Section 5.19. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter or the Definitive Debt Agreements, the Purchaser or Summit LLC shall promptly notify the Seller and shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain in replacement thereof, and negotiate and enter into definitive agreements with respect to, alternative financing from the same and/or alternative sources on terms and conditions not less favorable to Summit LLC than those contained in the Debt Commitment Letter in an amount sufficient to consummate the transactions contemplated by this Agreement as promptly as practicable following the occurrence of such event but no later than the date on which the Closing would otherwise occur under Section 2.01 (ythe “Alternative Financing”). Purchaser or Summit LLC shall deliver to the Seller true and complete copies (including drafts) of all contracts or other arrangements pursuant to which any such same or alternative source shall have committed to provide any portion of the Debt Financing (except in the case of customary fee letters where fee amounts, pricing caps and other economic terms, none of which could adversely impact affect the ability conditionality, enforceability or amount or availability of Constellation any such alternative financing, may be redacted). Purchaser or Summit LLC shall keep the Seller informed on a reasonably current basis and in reasonable detail of the status of its efforts to enforce its rights against arrange the Debt Financing and promptly, upon reasonable request, provide to the Seller copies (including drafts) of the definitive agreements and any other material documents relating to the Debt Financing. The Purchaser or Summit LLC shall give the Seller prompt written notice (and, in any event, within three (3) Business Days) (i) of any termination of the Debt Commitment Letter, any Definitive Debt Agreement or any portion of the Debt Financing, (ii) of any material breach or default, or termination or repudiation of any provisions of the Debt Commitment Letter or Definitive Debt Agreements, in each case, by any party thereto, of which Purchaser or Summit LLC becomes aware, (iii) of the receipt of any written notice or other written communication from any of the Debt Financing Sources with respect to (A) any actual or threatened breach, default, termination or repudiation of any provisions of the Debt Commitment Letter or any Definitive Debt Agreement, in each case, by any party thereto or (B) any material dispute or disagreement between or among any parties to the Debt Commitment Letter or the definitive agreements any Definitive Debt Agreement with respect thereto; provided to the obligation to fund the Debt Financing or the amount of the Debt Financing to be funded at Closing and (iv) if at any time for any reason it believes in good faith that (i) Constellation shall it will not be deemed able to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take obtain all or any other event, fact or circumstance that would be restricted by the foregoing provisions portion of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in Financing contemplated by the Debt Commitment Letter shall constitute a breach of this provision and the Definitive Debt Agreements on the terms and conditions, in the manner or from the Debt Financing Sources contemplated by the Debt Commitment Letter may or the Definitive Debt Agreements. As soon as reasonably practicable, but in any event within four (4) Business Days of the date the Seller delivers to Purchaser or Summit LLC a written reasonable request, Purchaser or Summit LLC shall provide any information reasonably requested by the Seller relating to any circumstance referred to in the immediately preceding sentence; provided, however, that in no event will Purchaser or Summit LLC be amended under any obligation to add additional Debt Financing Sourcesdisclose any information that is subject to a binding confidentiality obligation or any applicable legal privileges (including the attorney-client privilege). Constellation shall promptly deliver For purposes of this Agreement, references to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed “Debt Financing. Without limiting ” shall include the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under financing contemplated by the Debt Commitment LetterLetter as permitted to be amended, including as may be directed modified or replaced by one or more of the Other Parties in writing, this Section 5.19(a) and references to the extent consistent with the “Debt Commitment Letter” shall include such documents as permitted to be amended, modified or replaced by this Section 5.19(a).
Appears in 1 contract
Financing. (a) Subject The Controlling Shareholder shall use its commercially reasonable efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to obtain or cause to be obtainedsatisfy the Disclosed Conditions, and to consummate, consummate the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth described in the Debt Commitment LetterFacility Agreement (or on other terms that would not adversely impact the ability of Controlling Shareholder to timely consummate the transactions contemplated by this Agreement), including using commercially reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) to satisfy on a timely basisbasis all covenants, or obtain a waiver ofterms and conditions applicable to the Controlling Shareholder in the Facility Agreement that are within its control, any financing including the Disclosed Conditions. In the event that all conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure Facility Agreement required to be so satisfied is a direct result by the Controlling Shareholder have been satisfied, or upon funding, will be satisfied, in the Controlling Shareholder’s good faith judgment, the Controlling Shareholder shall use its commercially reasonable efforts to cause the Lenders to fund the Financing on the Financing Date and otherwise enforce its rights under the Facility Agreement. The Controlling Shareholder shall not, and shall not permit any of its Affiliates to, without the prior written consent of the Company, take or fail to take any action or enter into any transaction, including any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing, that could reasonably be expected to materially impair, delay or prevent obtaining the Financing. The Controlling Shareholder shall give the Company prompt notice of any material breach by any party under the Facility Agreement of which the Other Parties’ failure Controlling Shareholder becomes aware or any communications from Lender to furnish information as required under Section 6.15(c)); (iv) upon satisfaction the effect that it may not provide any portion of the financing conditions set forth contemplated by the Facility Agreement. In the event that any portion of the Financing becomes unavailable in the Debt Commitment Lettermanner or from the sources contemplated in the Facility Agreement despite the Controlling Shareholder’s commercially reasonable efforts to obtain the Financing, (i) Controlling Shareholder shall promptly notify the Company, and (ii) Controlling Shareholder shall use its commercially reasonable efforts to consummate arrange to obtain any such portion of the Committed Debt Financing at or prior from alternative sources, on terms that are no less favorable to the ClosingControlling Shareholder, as promptly as practicable following the occurrence of such event, including entering into definitive agreements with respect thereto. In connection with its obligations under this Section 6.9, the Controlling Shareholder shall be permitted to cause amend, modify or replace the Debt Financing Sources and Facility Agreement; provided that the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation Controlling Shareholder shall not permit any replacement of, or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any material provision or remedy under, or the Facility Agreement that would be reasonably likely to cause any replacement of, any of delay in the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any satisfaction of the conditions to the receipt of Committed Debt Financing, set forth in Article VII or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) prevent or materially impair or delay or prevent obtaining the funding Financing as required by the Controlling Shareholder to meet its obligations under this Agreement. The Controlling Shareholder shall keep the Company reasonably informed of the Committed Debt Financing (or satisfaction status of Controlling Shareholder’s efforts to arrange the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Tongjitang Chinese Medicines Co)
Financing. (ai) Subject Holdings has delivered to the terms Company a true, complete and conditions correct copy, including all exhibits, schedules or amendments thereto, of this Agreementthe executed USD30,000,000 Facility Agreement dated December 24, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, 2013 (the Committed “Debt Financing on or prior Agreement”) by and between Holdings and China Merchants Bank Co. Ltd., Hong Kong Branch (the “Lender”) pursuant to which the Closing Date on Lender has committed to provide debt financing to Holdings (the “Financing”) in an aggregate amount set forth therein, subject to the terms and conditions set forth in therein for the Debt Commitment Letterpurposes of financing the transactions contemplated by this Agreement and related fees and expenses. Holdings has delivered to the Company a true, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter complete and comply with its obligations thereunder; (ii) negotiate correct copy of an executed Contribution Agreement and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any Voting Agreement each dated as of the Other Parties’ failure date hereof, pursuant to furnish information as required under Section 6.15(c)); (iv) upon satisfaction which the parties thereto have agreed, subject to the terms and conditions set forth therein, that the Rollover Persons shall contribute all of the financing Rollover Shares to Holdings in exchange for newly issued shares of Holdings prior to the consummation of the Merger (the “Contribution”) and the Rollover Persons shall vote all Shares owned by them at the time of the Shareholders’ Meeting in favor of the Merger. The obligation of the Lender to fund the Financing is not subject to any contractual conditions other than as set forth in the Debt Commitment Letter, to consummate Financing Agreement. None of the Committed Debt Financing at Agreement, the Voting Agreement or the Contribution Agreement has been amended or modified prior to the date of this Agreement, no such amendment or modification is contemplated, and the respective commitments contained in the Debt Financing Agreement, the Voting Agreement and the Contribution Agreement have not been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated (provided, however, that Holdings and Merger Sub may replace, amend or supplement the Debt Financing Agreement to the extent permitted by Section 6.12). There are no side letters or other agreements to which Holdings or Merger Sub is a party related to the Contribution or issuance of new shares of Holdings other than as expressly set forth in the Contribution Agreement and there are no side letters or other agreements (written or otherwise) that impact the conditionality of the Financing to which Holdings or Merger Sub or any of their respective Affiliates is a party related to the funding or investing, as applicable, of the full amount of the Financing (except for (i) any fee letter related to the Financing (the “Fee Letter”), a complete copy of which has been provided to the Company, with only fee amounts in the Fee Letter being redacted and (ii) the Ancillary Debt Agreements); provided, that prior to the execution of this Agreement, Holdings shall have advised the Company of the maximum amount of fees and expenses (including any original issue discount (if any) payable by Holdings and Merger Sub under the Financing). Holdings has fully paid any and all commitment fees or other fees in connection with the Debt Financing Agreement that are payable on or prior to the Closingdate hereof, including to cause and the Debt Financing Sources Agreement, the Voting Agreement and the Contribution Agreement are in full force and effect and are the legal, valid, binding and enforceable obligations of Holdings and Merger Sub, as the case may be, and, to the knowledge of Holdings, each of the other persons committing parties thereto, in accordance with the terms and conditions thereof, subject to fund the Committed Debt Financing effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to fund or affecting creditors’ rights generally, and general equitable principles (whether considered in a proceeding in equity or at law). As of the Committed Debt Financing at date of this Agreement, and subject to the Closing accuracy of the representations and warranties of the Company set forth in such amount Section 5.1 and compliance by the Company with its obligations hereunder, none of Holdings or Merger Sub has any knowledge of any occurrence which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on handor without notice, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis lapse of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit time or agreeboth, and shall cause its Subsidiaries not to permit could or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would could reasonably be expected to constitute a default or breach on the part of Holdings or Merger Sub or any other party thereto under the Debt Financing Agreement, the Voting Agreement or the Contribution Agreement or that could otherwise result in (x) delay the Lender under the Debt Financing Agreement having the right to refuse to fund all or prevent the funding any part of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall Financing not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds becoming available to it that are sufficient to enable it in order to consummate the Transactions, transactions contemplated hereunder. The Debt Financing Agreement (including paying the Debt Payoff Amount Fee Letter) contains all of the conditions precedent to the obligations of the parties thereunder to make the Financing available to Holdings on the terms therein and the transaction expenses Contribution Agreement contains all of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver conditions precedent to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more obligations of the Other Parties in writing, parties thereunder to make the extent consistent with the Debt Commitment LetterContribution as described therein.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Constellation The Company shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth in the Debt Commitment Letter, including using use commercially reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agreeefforts, and shall cause its Subsidiaries not to permit or agreeuse commercially reasonable efforts, and shall use its commercially reasonable efforts to any terminationcause its and its Subsidiaries’ respective officers, amendment or modification to be made directors, employees, accountants, consultants, legal counsel, agents and other representatives (collectively, the “Company Representatives”) to, at Parent’s sole expense, provide all cooperation that is reasonably necessary or any waiver customary and reasonably requested by Parent to assist Parent in the arrangement of any provision underbank financing and/or bond offerings for the purpose of financing the Merger, the fees and expenses incurred in connection therewith and the other transactions contemplated hereby (the “Debt Financing”), including assisting with the preparation of materials for presentations, memoranda and similar documents required in connection with the Debt Financing; provided, however, that (x) nothing herein shall require such cooperation to the extent it would (A) unreasonably disrupt the conduct of the Company’s and the Subsidiaries’ respective businesses, (B) require the Company or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver Subsidiaries or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions Company Representatives to pay any fees or expenses or otherwise incur any liability or give any indemnities prior to the receipt Effective Time (except to the extent any such fee or expense is conditioned on the consummation of Committed Debt Financingthe Merger or Parent has advanced the amount of such fees, expenses or liabilities to the Company or the Subsidiaries), and (C) require the preparation or delivery of (i) financial statements, other than those contemplated by Sections 5.1(c) and 5.1(d), or otherwise expands, amends (ii) pro forma financial information or modifies any other provision forecasts of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent Company and the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or Subsidiaries and (y) adversely impact any documentation executed by the ability Company or any of Constellation to enforce its rights against other parties Subsidiaries shall not become effective until the consummation of the Closing. Notwithstanding anything to the Debt Commitment Letter contrary provided herein or in the definitive agreements Confidentiality Agreement, Parent shall be permitted to share all information subject to such agreement with its financing sources, subject to customary confidentiality undertakings by such financing sources with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Constellation Parent and Purchaser shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable use their reasonable best efforts to obtain or cause to be obtainedthe Financing on the terms, and subject to consummatethe conditions (including any “market flex” provisions), set forth in the Committed Financing Letters, including using their reasonable best efforts to (i) maintain in effect the Financing Letters in accordance with the terms and conditions thereof, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing on or prior to the Closing Date on the terms and conditions (including any “market flex” provisions) set forth in the Debt Commitment Letter (or with conditions no less favorable to Parent and Purchaser than the conditions set forth in the Debt Commitment Letter), including using reasonable best efforts to: (iiii) maintain complete the Marketing Materials (with the assistance of the Company pursuant to Section 8.6(c)) and assist Lender in effect the Debt Commitment Letter and comply with initiating its obligations thereunder; (ii) negotiate and execute marketing of the Debt Financing Documents on terms contained in as promptly as practicable following the Debt Commitment Letter date hereof, (including any “flex” provisions related thereto); (iiiiv) satisfy on a timely basisbasis all conditions to funding in the Financing Letters and the definitive agreements relating to the Financing (other than, or obtain a waiver of, any financing conditions in with respect to the Debt Commitment Letter that are within Constellation’s control (but excluding Letter, any condition where as to which the failure to be so satisfied is a direct result of any of the Other Parties’ Company’s failure to furnish information as required to be furnished by the Company under Section 6.15(c8.6(c)); ) and not take any action or omit to take any action to cause the Financing to be unavailable at Closing, (ivv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the ClosingAcceptance Time, including using its reasonable best efforts to cause the Debt Financing Sources and the other persons Persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at or prior to the Closing Acceptance Time and (vi) comply with its obligations under the Financing Letters, it being understood that Parent and Purchaser shall not be in such amount which, taken together with breach of their obligations set forth above on account of any failure to so comply directly resulting from any inaccuracy in the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount representations and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis warranties of the status Company set forth herein or any failure by the Company to comply with its obligations hereunder. Parent and Purchaser shall not, without the prior written consent of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not Company, permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or consent to any waiver of any provision or remedy under, the Financing Letters or any replacement of, any of the Debt Commitment Letter definitive agreements relating to the Financing if such termination, amendment, modification, modification or waiver or replacement would (A) reduces (or would have the effect of reducing) reduce the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount), unless (1) the Debt Financing; Financing or the Equity Financing is increased by a corresponding amount or the Debt Financing is otherwise made available to fund such reduction, or such fees or original issue discount, and (2) after giving effect to any of the transactions referred to in the immediately preceding clause (1), the representations and warranties set forth in Section 6.6 shall be true and correct, or (B) imposes new or impose additional conditions precedent to the availability of the Financing or otherwise expandsexpand, amends amend or modifies modify any of the conditions to the receipt of Committed Debt Financing, or otherwise expandsexpand, amends amend or modifies modify any other provision of the Debt Commitment Letter Financing Letters, in each case in a manner that would reasonably be expected to (x1) delay or prevent or make less likely to occur the funding of the Committed Debt Financing (or satisfaction of the financing conditions in to the Debt Commitment Letter that are in Constellation’s controlFinancing) on the Closing Date or (y2) adversely impact the ability of Constellation Parent or Purchaser to enforce its rights against other parties to the Debt Commitment Letter Financing Letters or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties Financing, in the case of each of the immediately preceding clauses (1) and (2), in any terminationmaterial respect (provided that, amendment, modification, waiver or replacement it or its Subsidiaries proposes subject to take or any compliance with the other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a8.6(a), Purchaser may amend (x) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional lenders, arrangers, bookrunners, agents and other commitment parties and (y) the definitive agreements with respect to the Debt Financing Sourcesto give effect to “market flex” provisions). Constellation Parent or Purchaser shall promptly deliver to the Other Parties Company copies of any such termination, amendment, modification, modification or waiver to or replacement, including under any Replacement Committed Financing Letter (other than any portion thereof that sets forth terms of the type that were subject to redaction in the Redacted Fee Letter) or the material definitive agreements relating to the Debt Financing. Without limiting the foregoing, Constellation shall, if executed and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, delivered prior to the extent consistent with the Debt Commitment LetterAcceptance Time.
Appears in 1 contract
Financing. The Purchaser will have at the Effective Time sufficient funds available to satisfy the aggregate consideration payable by the Purchaser pursuant to the Arrangement in accordance with the terms of this Agreement and the Arrangement, and to satisfy all other obligations payable by the Purchaser pursuant to this Agreement and the Arrangement. The Purchaser delivered to the Company a complete and accurate copy of the facilities agreement and intercreditor agreement, and any relevant fee letters (awith only the fee and any other economic provisions redacted, none of which would permit the Lenders (as defined below) Subject to reduce the amount or availability of the Financing except as permitted by Section 4.5) from the financial institutions (the “Lenders”) identified therein (the “Financing Documents”) pursuant to which such financial institutions have committed to provide, subject to the terms and conditions therein, debt financing in the amounts set forth therein for the purpose of funding the Arrangement and the transactions contemplated by this Agreement (being collectively referred to as the “Financing”). The Financing Documents have not been amended or modified and the Lenders’ respective commitments contained in such letters and agreements have not been withdrawn, terminated, rescinded or reduced (except as permitted by Section 4.5) in any respect by the Purchaser or, to the knowledge of the Purchaser, the Lenders, as applicable. Assuming the Financing is funded pursuant to the Financing Documents, the net proceeds of the Financing, together with cash held by the Purchaser, will, in the aggregate be sufficient to enable the Purchaser to fund the Aggregate Consideration and make all other payments of any fees and expenses required to be paid in connection with the Arrangement and the Financing, and to pay amounts related to refinancing of any outstanding indebtedness of the Company contemplated by the Financing Documents. Assuming accuracy of the representations and warranties of the Company hereunder, as of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of the Purchaser under the Financing Documents or, to the knowledge of the Purchaser, any other parties thereto, or a failure of any condition to the Financing or otherwise result in any portion of the Financing contemplated thereby to be unavailable on the Effective Date. Assuming satisfaction of the conditions set forth in Section 6.1 and Section 6.2 of the Agreement, the Purchaser has no reason to expect that any of the conditions of the Purchaser to the Financing will fail to timely be satisfied or that the full amount of the Financing will not be available on the Effective Date. There are no conditions precedent related to the funding of the full amount of the Financing, other than as expressly set forth in or contemplated by the Financing Documents. The Purchaser or its affiliates have paid in full any and all commitment fees or other fees required to be paid pursuant to the terms the Financing Documents on or before the date of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing will pay in full any such amounts due on or prior to the Closing Date on Effective Time. There are no side letters or other agreements, contracts or arrangements to which the terms and conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied Purchaser is a direct result of any of the Other Parties’ failure party which are related to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction full amount of the financing conditions Financing other than as expressly set forth in or contemplated by the Financing Documents. Notwithstanding anything to the contrary contained herein, each Party agrees that a breach of this representation and warranty will not result in the Debt Commitment Letter that are in Constellation’s controlfailure of a condition precedent hereunder, if (notwithstanding such breach) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) Purchaser is willing and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it able to consummate the Transactions, including paying Arrangement on the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt FinancingEffective Date, and (ii) for has funds sufficient to consummate the avoidance of doubt, neither transactions contemplated hereby at the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterEffective Time.
Appears in 1 contract
Samples: Arrangement Agreement (Merus Labs International Inc.)
Financing. (a) Subject Each of Parent and Merger Sub shall use, and shall cause their respective Affiliates to the terms and conditions of this Agreementuse, Constellation shall reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and subject only to the conditions (including the market flex provisions set forth in the Redacted Fee Letter) set forth in the Financing Letters, including using reasonable best efforts to (i) maintain in effect and comply with the Financing Letters, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms and subject only to the conditions (including the market flex provisions) set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy (and cause its Affiliates to satisfy) on a timely basis, or obtain a waiver of, any financing (taking into account the Marketing Period) basis all conditions applicable to Parent and its Affiliates in the Debt Commitment Financing Letters and the definitive agreements related thereto (or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Financing Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(cor such definitive agreements related thereto)); , (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the ClosingClosing Date, including to cause (v) enforce its rights under the Debt Financing Sources Letters and the definitive agreements relating to the Financing and (vi) comply with its covenants and other persons committing obligations under the Financing Letters and the definitive agreements relating to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation Parent shall not, and shall not permit any of its Affiliates to, take any action not otherwise required under this Agreement that is a breach of, or agreewould result in termination of, any of the Financing Letters. Parent, Merger Sub and the Guarantors shall cause its Subsidiaries not not, without the prior written consent of the Company, agree to or permit any termination of or agreeamendment, to any termination, amendment supplement or modification to be made to, or grant any waiver of any provision under, the Financing Letters or any replacement of, any of the Debt Commitment Letter definitive agreements relating to the Financing if such termination, amendment, modificationsupplement, modification or waiver or replacement would be reasonably likely to (AA)(1) reduces reduce (or would could have the effect of reducing) the aggregate amount of any portion of the Committed Debt Financing; Financing (including by increasing the amount of fees to be paid or original issue discount) unless an alternative source of the Equity Financing or other financing is increased by a corresponding amount, so long as in the case of such alternative source of Equity Financing or other financing, the terms thereof are not of the type that would consitute a Prohibited Amendment under clauses (B) imposes new or additional conditions or otherwise expands(C) below, amends or modifies any is then made available, including by increasing the amount of the conditions to Equity Financing or (2) reduce the receipt amount of Committed Equity Financing unless the Debt FinancingFinancing or alternative financing is increased by a corresponding amount, or otherwise expandsso long as in the case of any alternative financing, amends or modifies any other provision the terms thereof are of the Debt Commitment Letter in a manner type that would reasonably be expected to not constitute a Prohibited Amendment under clauses (xB) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (yC) below, (B) adversely impact the ability of Constellation Parent or Merger Sub, as applicable, to enforce its rights against other parties to the Debt Commitment Letter Financing Letters or the definitive agreements with respect thereto; provided to the Financing or (C) impose new or additional conditions precedent to the availability of the Financing or otherwise expand, amend or modify any of the conditions precedent to the Financing, or otherwise expand, amend or modify any other provision of the Financing Letters in a manner that could reasonably be expected to materially delay or prevent or make less likely to occur the funding of the Financing (ior satisfaction of the conditions to the Financing) Constellation shall not be deemed to have violated this Section 6.15(aon the Closing Date (taking into account the Marketing Period) if Constellation shall have (the amendments described in the foregoing clauses (A), (B) provided prior written notice and (C), the "Prohibited Amendments"). Parent shall deliver to the Other Parties Company true and complete copies of any termination, amendment, modification, supplement, consent or waiver to or replacement it under any Financing Letter or its Subsidiaries proposes the definitive agreements relating to take the Financing promptly upon execution thereof other than (1) amendments or modifications solely for the purpose of joining additional arrangers or financing sources following the date hereof to the extent effected pursuant to the terms of the Debt Commitment Letter or (2) any other eventamendments or modifications to the terms that have been redacted under the Redacted Fee Letter. In addition to and not in limitation of the foregoing, fact Parent shall not permit the consummation of the Carveout Transactions prior to the payment in full of the Merger Consideration unless the net cash proceeds of the Carveout Transactions payable to the Company on the Closing Date equal or circumstance that would exceed the sum of (i) the amounts permitted to be restricted by borrowed on the foregoing provisions Closing Date under each of this Section 6.15(athe CAR ABL Facility (as defined in the Debt Commitment Letter) and the USR ABL Facility (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying as defined in the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(aCommitment Letter) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for any reduction in the avoidance of doubt, neither the existence nor the exercise of any “flex” provision NAD ABL Closing Amount (as defined in the Debt Commitment Letter shall constitute Letter) as a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more result of the Other Parties consummation of the Carveout Transactions on the Closing Date, in writing, each case in order to finance the extent consistent with the Debt Commitment LetterTransaction.
Appears in 1 contract
Financing. (a) Subject Each of Parent and Merger Sub shall use their respective reasonable best efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, obtain or cause and consummate the Financing not later than the date Closing is required to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date effected in accordance with Section 2.2 on the terms and conditions described in or contemplated by the Commitment Letters and any related fee letter (including complying with any request requiring the exercise of so-called “market flex” provisions in the fee letter) (or on other terms that, with respect to conditionality, are not less favorable to Parent than the terms and conditions (including any “market flex” provisions) set forth in the Debt Commitment LetterLetters and any related fee letter so long as such other terms would not (and would not reasonably be expected to) have any result, event or consequence described in any of clauses (A) through (D) of Section 6.12(d)), including using reasonable best efforts to: to (i) maintain in full force and effect the Debt Commitment Letter and comply with its obligations thereunder; Letters, (ii) negotiate and execute definitive agreements (which, with respect to the bridge facility documentation, shall not be required until reasonably necessary in connection with the funding of the Debt Financing) with respect to the Debt Financing Documents on the terms contained in the Debt Commitment Letter and any related fee letter (including any which may reflect “market flex” provisions related thereto); provisions) (iii) satisfy or on a timely basisother terms that, or obtain a waiver ofwith respect to conditionality, any financing conditions are no less favorable to Parent than the terms contained in the Debt Commitment Letter and any related fee letter (including any “market flex” provisions applicable thereto) so long as such other terms would not (and would not reasonably be expected to) have any result, event or consequence described in clauses (A) through (D) of Section 6.12(d)), in each case, which terms shall not in any respect expand on the conditions to the funding of the Financing at the Closing or reduce the aggregate amount of the Financing below the amount required to satisfy the Financing Uses (after taking into account the amount of the Equity Financing and available cash of the Company and its Subsidiaries) unless the Equity Financing is correspondingly increased (such definitive agreement, the “Definitive Financing Agreements”) and (iii) satisfy and comply with on a timely basis (or, if deemed advisable by Parent, seek the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Commitment Letters and such Definitive Financing Agreements that are within Constellation’s their control (but excluding any condition where the failure that are to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, by Parent or Merger Sub and to consummate the Committed Debt Financing at or prior to the Closing, which such reasonable best efforts shall include, for the avoidance of doubt, taking enforcement action (including by instituting litigation in respect thereof) to cause the Debt Financing Sources and the other persons Persons committing to fund provide the Committed Financing to comply with their obligations under the Commitment Letters and the Definitive Financing Agreements and to cause the Debt Financing Sources and such Persons to fund the Committed Debt such Financing at the Closing in such amount whichClosing. Parent shall, taken together with upon the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on handrequest of the Company, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties Company informed on a reasonably current basis in reasonable detail of any material developments concerning the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation Upon the request of the Company, Parent and Merger Sub shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver promptly provide the Company with copies of any provision under, Definitive Financing Agreements and such other material information and documentation regarding the Debt Financing as shall be reasonably necessary to allow the Company to monitor the progress of such financing activities. Neither Parent nor Merger Sub shall release or any replacement of, any consent to Active.22007448.8.doc the termination of obligations of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to Sources under the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if Definitive Financing Agreements except in connection with the approval addition of Polaris and Siriusbanks, lead arrangers, bookrunners, syndication agents or other similar entities who had not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in executed the Debt Commitment Letter shall constitute a breach as of the date of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterAgreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (ClubCorp Holdings, Inc.)
Financing. The Purchaser has provided the Seller a true, complete and correct copy of an executed debt financing commitment letter and corresponding customarily redacted fee letter (anone of which redacted terms would reasonably be expected to adversely affect the amount or availability of the Debt Financing) Subject from the financial institutions identified therein (as may be amended or replaced from time to time) (the “Debt Financing Commitment”), to provide, subject to the terms and conditions therein, interim financing in the amounts set forth therein for the purpose of this Agreementfunding the Purchase Price (being collectively referred to as the “Debt Financing”). The Debt Financing Commitment is a legal, Constellation shall takevalid and binding obligation of Parent and, to the knowledge of the Purchaser, the other parties thereto, in each case subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity. As of the date hereof, the Debt Financing Commitment is in full force and effect and has not been withdrawn, rescinded or terminated or otherwise amended or modified in any respect. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a breach or default on the part of Parent or, to the knowledge of the Purchaser, any of the other parties to the Debt Financing Commitment, or cause a failure of the conditions to the Debt Financing. The net proceeds from the Debt Financing, together with cash on hand, will be takensufficient to consummate the transactions contemplated hereby. Parent has paid in full any and all commitment or other fees required by the Debt Financing Commitment that are due as of the date hereof, and will pay, after the date hereof, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed such fees as they become due. The Debt Financing on or prior Commitment is not subject to any conditions precedent to the Closing Date on obligations of the parties thereunder to make the full amount of the Debt Financing available to Parent other than as set forth therein (including the payment of customary fees). There are no side letters or other agreements (except for any customary engagement letter, a true and complete copy of which has been provided to the Seller, with only the fee amounts and certain other terms and conditions (none of which would reduce the aggregate principal amount or affect the conditionality of the Debt Financing) redacted) relating to the Debt Financing to which Parent or any of its Affiliates is a party other than as expressly set forth in the Debt Commitment LetterFinancing Commitment. The Purchaser understands and acknowledges that the consummation of the transaction contemplated hereby are not contingent on financing, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute regardless of whether the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement ofthereof, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions is available to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have Parent at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterClosing.
Appears in 1 contract
Financing. (a) Subject Purchaser shall use its best efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to arrange, obtain or cause to be obtained, and to consummate, consummate the Committed Debt Financing on the terms and conditions described in the Debt Commitment Letter on or prior to the Closing Date on for the terms and conditions set forth in purpose of, among other things, funding the Debt Commitment Letter, including using reasonable best efforts toPurchase Price. Such actions shall include: (i) maintain maintaining in full force and effect and in all material respects the Debt Commitment Letter and comply in the form provided to Seller concurrently with its obligations thereunder; the execution of this Agreement, (ii) negotiate satisfying on a timely basis all of the conditions precedent and execute covenants to the Debt Financing Documents on applicable to Purchaser that are to be *** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission. satisfied by Purchaser, (iii) negotiating, executing and delivering definitive documents (“Debt Financing Documents”) that reflect in all material respects the terms contained in the Debt Commitment Letter (including including, as necessary, agreeing to any requested changes to the commitments thereunder in accordance with any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions contained in the Debt Commitment Letter that are within Constellation’s control (but excluding or any condition where related fee letter), in each case which terms shall not in any material respect expand on the failure conditions to the funding of the Debt Financing Proceeds at the Closing or reduce the aggregate amount of the Debt Financing Proceeds available to be so satisfied is a direct result of any of funded on the Other Parties’ failure to furnish information as required under Section 6.15(c)); Closing Date, (iv) upon satisfaction drawing such amount of the financing conditions set forth in Debt Financing Proceeds as is necessary to satisfy Purchaser’s obligations under this Agreement and (v) fully enforcing its rights under the Debt Commitment Letter, Letter and the Debt Financing Documents in order to consummate the Committed Debt Financing at or prior to the Closing, including to cause . Without the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in prior written consent of Seller (such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required consent not to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation unreasonably withheld, conditioned or delayed), Purchaser shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, consent to any terminationamendment, amendment supplement or modification to be made to, or any waiver of any provision under, or any replacement of, any of to the Debt Commitment Letter if such termination, amendment, modification, waiver supplement or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) modification imposes new or additional conditions to the initial funding or otherwise expands, amends or modifies any of the conditions to the receipt of Committed the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter Letter, in a manner that would reasonably be expected to (x) delay or prevent or make less likely the funding of the Committed Debt Financing (or satisfaction of the financing conditions in to the Debt Financing) on the Closing Date, provided that Purchaser may (1) amend the Debt Commitment Letter that are to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities, (2) implement or exercise the “flex” provisions contained in Constellation’s controlone or more fee letters related to the Debt Financing and (3) reduce the Debt Financing on a dollar for dollar basis upon receipt of the proceeds of an offering of debt or equity securities (an “Equity Issuance”) on or after the date hereof. Purchaser acknowledges and agrees that its obligations to consummate the transactions contemplated by this Agreement are not conditioned or contingent upon receipt of the Debt Financing Proceeds and a failure of the Closing Date to occur because Purchaser has not received the Debt Financing Proceeds shall constitute a material breach of this Agreement by Purchaser. Purchaser shall keep Seller fully informed, in all reasonable detail, of the status of its efforts to arrange the Debt Financing and shall, from the date hereof until the Closing Date, promptly notify Seller of the receipt by Purchaser of any written notice or (y) adversely impact other written communication from any Debt Financing Source with respect to any actual, threatened or alleged material breach, default, termination or repudiation by any party to any Debt Commitment Letter or any Debt Financing Document or any material provision of the ability of Constellation to enforce its rights against other parties Debt Financing contemplated pursuant to the Debt Commitment Letter or the definitive agreements with respect thereto; Debt Financing Documents, provided that (i) Constellation shall not in no event will Purchaser be deemed under any obligation to have violated disclose any information shared among Purchaser and its professional advisors in connection with matters contemplated by this Section 6.15(a) if Constellation shall have (A) provided prior written notice sentence that is subject to the Other Parties of any termination, amendment, modification, waiver attorney-client or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sourcessimilar legal privilege. Constellation Purchaser shall promptly deliver to the Other Parties provide Seller, upon reasonable request, with copies of any Debt Financing Documents and such terminationother information and documentation regarding the Debt Financing as shall be reasonably necessary to allow Seller to monitor the progress of such financing activities. Upon request, amendment, modification, waiver or replacementPurchaser shall provide Seller with written updates concerning the status of any Equity Issuance, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required whether DHX intends to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more proceed with an Equity Issuance to raise part of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterPurchase Price.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Iconix Brand Group, Inc.)
Financing. (a) Subject During the Interim Period, the SPAC may seek to obtain additional financing commitments from third-party investors (the “Financing Investors”) by entering into subscription agreements in form and substance and with terms reasonably satisfactory to the terms and conditions Company (the “Financing Agreements”), pursuant to which the Financing Investors may commit to make a private investment in New PubCo by way of this Agreementsubscribing for equity securities, Constellation debt securities or other equity-linked or convertible securities of New PubCo (collectively, a “Financing”). The obligations of the Parties to consummate the Closing shall not be conditioned upon the consummation of a specific minimum amount of Financing. In the event that one (1) or more Financing Agreements is entered into by the SPAC in connection with the Financing, (i) the SPAC may not modify or waive, or provide consent to modify or waive (including consent to termination, to the extent required), any provisions of any such Financing Agreement or any remedy thereunder, in each case, without the prior written consent of the Company, other than immaterial or ministerial modifications or waivers, (ii) the SPAC shall use its reasonable best efforts to take, or cause to be taken, all actions and take reasonable best efforts to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, consummate the Committed Debt transactions contemplated by each such Financing on or prior to the Closing Date Agreement on the terms and subject to the conditions set forth in the Debt Commitment Letterdescribed therein, including using reasonable best efforts to: (i) maintain in effect satisfying on a timely basis all conditions and covenants applicable to the Debt Commitment Letter SPAC and comply otherwise complying with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); , (iii) satisfy on a timely basis, or obtain a waiver of, any financing if all conditions in the Debt Commitment Letter any such Financing Agreement (other than those conditions that by their nature are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result at the Closing, but which conditions are then capable of any of being satisfied) have been satisfied, the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to SPAC shall consummate the Committed Debt transactions contemplated by each such Financing Agreement at or prior to the Closing, including (iv) the SPAC shall deliver notices to counterparties to each such Financing Agreement as required by and in the manner set forth therein in order to cause timely funding in advance of the Closing, (v) the SPAC shall enforce its rights under each such Financing Agreement to cause the Debt applicable Financing Sources and the other persons committing Investors to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount amounts set forth therein and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducingvi) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation SPAC shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior provide prompt written notice to the Other Parties Company if any counterparty to any Financing Agreement notifies the SPAC of any terminationbreach of any representation or other agreement contained in any such Financing Agreement by such counterparty. A Financing may also take the form of an agreement (a “Non-Redemption Agreement”) between the SPAC and/or the Sponsor and a Financing Investor pursuant to which such Financing Investor agrees to not redeem any SPAC Class A Shares it owns, amendmentor agrees to acquire, modificationin connection with the Closing. In connection with any Financing, waiver or replacement it or its Subsidiaries proposes the SPAC may, at Closing (to take or any other event, fact or circumstance that would be restricted the extent consented to by the foregoing provisions Sponsor pursuant to the Sponsor Side Letter), in addition to any securities subscribed for in such Financing, issue (a) an aggregate number of this Section 6.15(aNew PubCo Common Shares not to exceed 1,725,000 shares (such total amount so issued as of Closing, the “Financing Incentive Shares”) and (Bb) an aggregate number of New PubCo Warrants not to exceed 3,360,000 warrants (such total amount so issued as of Closing, the parties “Financing Incentive Warrants”), and such issuance of Financing Incentive Shares and/or Financing Incentive Warrants in connection with any Financing shall be deemed reasonably agree acceptable to the Company; provided, that, taking into account such terminationSponsor forfeits a number of New PubCo Common Shares and New PubCo Warrants equal to the number of Financing Incentive Shares and Financing Incentive Warrants, amendmentrespectively, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if in accordance with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and Sponsor Side Letter (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter alternative, the Sponsor may agree to transfer certain New PubCo Common Shares and/or New PubCo Warrants in connection with a Financing or a Non-Redemption Agreement); provided, further, that nothing set forth herein shall constitute a breach of this provision and the Debt Commitment Letter may be amended require New PubCo to add additional Debt issue or transfer Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver Incentive Shares or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterFinancing Incentive Warrants.
Appears in 1 contract
Samples: Business Combination Agreement (Focus Impact Acquisition Corp.)
Financing. (a) Subject to the terms Acquiror and conditions of this Agreement, Constellation Merger Sub shall take, or cause to be taken, as promptly as practicable after the date hereof, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date Date, to consummate the purchases contemplated by the Subscription Agreements on the terms and conditions set forth in the Debt Commitment Letterdescribed or contemplated therein, including using reasonable best efforts to: (ia) maintain satisfy in effect all material respects on a timely basis all conditions and covenants applicable to Acquiror in the Debt Commitment Letter Subscription Agreements and otherwise comply with its obligations thereunder; , (iib) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing event that all conditions in the Debt Commitment Letter Subscription Agreements (other than conditions that Acquiror or any of its Affiliates control the satisfaction of and other than those conditions that by their nature are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result at the Closing) have been satisfied, consummate transactions contemplated by the Subscription Agreements at or prior to Closing and (c) without limiting the Company’s rights to enforce certain of such Subscription Agreements in the event that all conditions in the Subscription Agreements (other than conditions that Acquiror or any of its Affiliates control the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of and other than those conditions that by their nature are to be satisfied at the financing conditions Closing) have been satisfied, to cause the applicable PIPE Investors to pay to (or as directed by) Acquiror the applicable portion of the PIPE Investment Amount, as applicable, set forth in the Debt Commitment LetterSubscription Agreements in accordance with their terms. Unless otherwise approved in writing by the Company (which approval shall not be unreasonably withheld, to consummate the Committed Debt Financing at conditioned or prior to the Closingdelayed), including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation Acquiror shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of (in whole or in part) of, or provide consent to modify (including consent to terminate), any provision or remedy under, or any replacement replacements of, any of the Debt Commitment Letter if such terminationSubscription Agreements, amendmentin each case, modificationother than as a result of any assignment or transfer contemplated therein or permitted thereby, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter and in each case in a manner that as would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions likely result in the Debt Commitment Letter that are condition set forth in Constellation’s controlSection 9.03(f) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have satisfied at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt FinancingEffective Time. Without limiting the generality of the foregoing, Constellation shallAcquiror shall give the Company, and shall cause its applicable Subsidiary toprompt written notice: (i) of any breach or default (or any event or circumstance that, take all actions required with or without notice, lapse of time or both, could give rise to enforce its rights under the Debt Commitment Letterany breach or default) by any party to any Subscription Agreement known to Acquiror, including as may be directed by one or more (ii) of the Other Parties receipt of any written notice or other written communication from any party to any Subscription Agreement with respect to any actual, potential, threatened or claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by any party to any Subscription Agreement or any provisions of any Subscription Agreement and (iii) if Acquiror does not expect to receive all or any portion of the PIPE Investment Amount on the terms, in writing, to the extent consistent with manner or from the Debt Commitment LetterPIPE Investors as contemplated by the Subscription Agreements.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Graf Acquisition Corp. IV)
Financing. (a) Subject Prior to the terms earlier of the Effective Time and conditions the valid termination of this AgreementAgreement in accordance with ARTICLE VII, Constellation Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper necessary or advisable to arrange and obtain or cause to be obtained, and to consummate, consummate the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth in the Debt Commitment LetterDate, including including, but not limited to, using its reasonable best efforts towith respect to the following items: (i) maintain maintaining in effect the Debt Commitment Letter and comply Letters (subject to replacement in compliance with its obligations thereunderthis Agreement or as required by Section 5.20 following a Financing Failure Event); (ii) negotiate satisfying on a timely basis all Financing Conditions applicable to Parent and execute Merger Sub (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing); (iii) negotiating, executing and delivering Debt Financing Documents on that reflect terms no less favorable to Parent than the terms contained in the Debt Commitment Letter (including except to the extent acceptable to Parent in its sole discretion, so long as any “flex” provisions related thereto); (iii) satisfy on a timely basis, new or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to revised terms would not be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)Prohibited Financing Amendments); (iv) in the event that the conditions set forth in Section 6.1 and Section 6.2 and the Financing Conditions have been satisfied or, upon satisfaction funding would be satisfied, use its reasonable best efforts to cause the Financing Sources to fund the amount of the Debt Financing and the Guarantors to fund the amount of the Equity Financing necessary to fund the Required Funding Amount; and (v) enforcing Parent’s rights under the Debt Commitment Letter in the event of a Financing Failure Event. Notwithstanding anything to the contrary contained in this Agreement, in no event shall the reasonable best efforts of Parent require or be deemed or construed to require Parent to (I) seek equity financing from any source (other than the Equity Financing), (II) pay any fees materially in excess of those contemplated by the Debt Commitment Letter (whether to secure waiver of any conditions contained therein or otherwise) or (III) arrange or obtain any Alternative Financing having terms and conditions (including any flex provisions applicable thereto) that are materially less favorable to Parent than those set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, except to the extent consistent with the Debt Commitment Letteracceptable to Parent in its sole discretion, so long as any such less favorable terms would not be Prohibited Financing Amendments).
Appears in 1 contract
Financing. (a) Subject Each of Holdco and Parent shall use its commercially reasonable efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions set forth described in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision underor remedy under any Financing Document (provided, however, that Holdco, Parent and Merger Sub may replace, amend or any replacement of, any of supplement the Debt Commitment Letter Financing Agreement, if such terminationreplacements, amendmentamendments or supplements, modificationindividually or in the aggregate, waiver or replacement would not (Ai) reduces (or would have expand upon the effect of reducing) conditions precedent to the aggregate amount of Debt Financing as set forth in the Committed Debt Financing; Financing Agreement in any way or (Bii) imposes new prevent or additional conditions or otherwise expands, amends or modifies any of impair the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction availability of the financing or materially delay the financing under the Debt Financing Agreement or the consummation of the transactions contemplated by this Agreement), including using commercially reasonable efforts to (1) maintain in full force and effect the Financing Documents until the transactions contemplated by this Agreement are consummated, (2) satisfy on a timely basis all conditions and covenants applicable to Holdco, Parent and Merger Sub in the Financing Documents (including by consummating the financing pursuant to the terms of the Equity Financing ) and otherwise comply with its obligations thereunder, (3) enter into notes, security agreements, guarantees and other definitive agreements as required by the Debt Financing Agreement (“Ancillary Debt Agreements”) on the terms and conditions contemplated by the Debt Financing Agreement, (4) consummate the Financing at or prior to Closing, and (5) assuming all terms and conditions in the Debt Commitment Letter that are in Constellation’s control) Financing Agreement have been satisfied, cause the Financing Sources and other persons providing Debt Financing to fund on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or Financing required to consummate the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to Merger and the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions transactions contemplated hereby. For purposes of this Section 6.15(a) and (B) 6.13, references to “Financing” shall include the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at financing contemplated by the Closing funds available to it that are sufficient to enable it to consummate Financing Documents as permitted in the Transactions, including paying case of the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not Financing Agreement, to be deemed to have violated replaced, amended or supplemented by this Section 6.15(a) if with the approval of Polaris 6.13(a), and Sirius, not references to “Financing Documents” and “Debt Financing Agreement” shall include such documents as permitted to be unreasonably withheldreplaced, Constellation shall, amended or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of supplemented by this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterSection 6.13(a).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Fushi Copperweld, Inc.)
Financing. (a) Subject It is understood that Xxxxxxxx must obtain financing satisfactory to Landlord in order to make the terms improvements required hereunder. In the event Landlord shall be unable to obtain said financing and conditions of so long as the Commencement Date has not occurred, Landlord shall have the right and option at any time prior to one year after the date hereof to cancel this Agreement, Constellation shall takeLease. If any lending institution with which Xxxxxxxx has negotiated or may negotiate interim or long term financing for the shopping center, or cause to be takenany part thereof, all actions and to dodoes not approve the credit rating of Tenant, or cause to be done, all things necessary, proper if such lending institution shall require a change or advisable to obtain or cause to be obtainedchanges in this Lease, and if within fifteen (15) days after notice from Landlord (i) Tenant fails or refuses to consummatesupply or execute guaranties which are required by any such lending institution, or (ii) Tenant fails or refuses to execute with Landlord the Committed Debt Financing on amendment or amendments to this Lease accomplishing the change(s) that are required by any such lending institution, Landlord shall have the right to cancel this Lease at any time prior to the Closing Date on the terms and conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior Commencement Date. Notwithstanding anything herein to the Closingcontrary, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would Tenant shall not be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and Landlord shall cause its Subsidiaries not have any right of cancellation for Tenant's refusal to permit or agree, to any terminationmodifications to the provisions of this Lease relating to the amount of minimum rent and/or percentage rent, amendment the size and/or location of the Demised Premises, the Lease Term, or modification a reduction of the improvements to be made toby the Landlord to the Demised Premises prior to tender of possession. In the event of cancellation by Landlord, or any waiver of any provision under, or any replacement of, in accordance with any of the Debt Commitment Letter if such terminationprovisions in this Section 12.7, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount this Lease shall be and become null and void and both parties shall automatically be released as of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any date of the conditions to Landlord's cancellation notice from any and all liabilities or obligations under this Lease except Landlord shall return the receipt of Committed Debt Financingsecurity deposit, or otherwise expandsif any, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted made by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterTenant.
Appears in 1 contract
Samples: Lease Agreement
Financing. The Buyer shall, at the Buyer’s expense, use its commercially reasonable efforts to (ai) Subject fully satisfy in all respects, on a timely basis, all terms, conditions, representations and warranties set forth in the Commitment Letters and (ii) enforce its rights under the Commitment Letters such that the Financing shall be consummated as soon as practicable after the satisfaction or waiver of the conditions set forth in Sections 7.1 and 7.2 hereof (other than Section 7.2(n)). The Buyer shall use its commercially reasonable efforts to enter into definitive agreements with respect to the financings contemplated by the Commitment Letters on terms and conditions of this Agreement, Constellation shall take, or cause no less favorable to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing Buyer than the Commitment Letters as promptly as practicable but in any event on or prior to the Closing. The Buyer will furnish true, correct and complete copies of such executed definitive agreements to the Company promptly upon request by the Company. At the Company’s request, the Buyer shall keep the Company informed with respect to all material activity concerning the status of the financings contemplated by the Commitment Letters and shall give the Company prompt notice of any material adverse change with respect to such Financings. Without limiting the foregoing, the Buyer agrees to promptly notify the Company if at any time prior to the Closing Date on the terms and conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt any Commitment Letter and comply with its obligations thereundershall expire or be terminated for any reason; or (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt any financing source that is a party to any Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy notifies the Buyer that such source no longer intends to either provide or underwrite financing to the Buyer on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions material terms set forth therein. Other than in connection with this Agreement, the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation Buyer shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agreenot, and shall cause its Subsidiaries Buyer’s Affiliates not to permit or agree, to any termination, amendment or modification to be made to, without the prior written consent of the Company, take any action or enter into any waiver transaction, including any merger, acquisition, joint venture, disposition (including the disposition of any provision undercapital stock of any Buyer Subsidiary), lease, contract or any replacement ofdebt or equity financing, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) materially impair, delay or prevent the funding of the Committed Debt Financing (or satisfaction Buyer’s obtaining of the financing conditions contemplated by any Commitment Letter. The Buyer shall not amend or alter, or agree to amend or alter the Commitment Letters in any manner that would materially impair or delay or prevent the Debt Transactions without the prior written consent of the Company. If any Commitment Letter shall be withdrawn or rescinded, the Buyer shall use its commercially reasonable efforts until July 31, 2007), to (i) obtain, and, if obtained, will provide the Company with a copy of, a new financing commitment that are in Constellation’s control) provides for, on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties such terms and conditions not materially less favorable to the Debt Buyer than the Commitment Letters and on such terms and conditions which will not impair, delay or impede the consummation of the Merger, at least the same amount of financing as contemplated by such Commitment Letter or the as originally issued; (ii) enter into definitive agreements with respect theretoto such new financing; provided that and (iiii) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice obtain funds under such agreements to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it extent necessary to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (IntraLinks Holdings, Inc.)
Financing. The Purchaser represents that the Purchaser is capable of obtaining such mortgage financing as the Purchaser requires to enable the Purchaser to pay the balance due on the Closing Date (athe “Purchaser’s Financing”) Subject or does not require any financing to complete the terms and conditions purchase. Within ten (10) days after the acceptance of this Agreement, Constellation the Purchaser shall takedeliver to the Vendor satisfactory evidence that the Purchaser is pre-approved for Purchaser’s Financing by a bank, trust company or cause other financial institution. The Purchaser shall also deliver to be takenthe Vendor not later than fifteen (15) days prior to Closing Date a mortgage commitment from a bank, all actions and trust company or other financial institution which evidences that the Purchaser has been approved for Purchaser’s Financing. Alternatively, the Purchaser shall deliver to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtainedthe Vendor within ten (10) days after the acceptance of this Agreement, and to consummate, the Committed Debt Financing on or again not later than fifteen (15) days prior to the Closing Date on Date, satisfactory evidence from a bank, trust company or other financial institution, indicating that the terms Purchaser has sufficient funds and conditions set forth is able to close this transaction without registering a mortgage against the Land. If the Vendor determines in its sole and unfettered discretion that the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect evidence provided to it is insufficient for the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute purposes of closing the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date Date, the Purchaser shall deliver a mortgage commitment from a bank, trust company or other financial institution evidencing that the Purchaser has been approved for Purchaser’s Financing within ten (y10) adversely impact days of request by the ability Vendor. The failure of Constellation the Purchaser to enforce its rights against other parties to comply with the Debt Commitment Letter or above-noted provisions shall constitute a default under this Agreement in which event the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation Vendor shall have (A) provided prior the right to terminate this Agreement by written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it Purchaser or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account solicitors. Upon such termination, amendment, modification, waiver the Deposit shall be forfeited as liquidated damages and not as penalty and without prejudice to Vendor’s right to recover from the Purchaser all additional losses and damages which the Vendor may suffer or replacement, New Polaris will incur as a result of such default. The Vendor shall have at no obligation to consent to any extension of the Closing funds available to it Date that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended requested by the Purchaser by reason of the Purchaser’s failure or inability to add additional Debt Financing Sourcesobtain Purchaser’s Financing. Constellation In the event the Vendor, in its sole, absolute and unfettered discretion, consents to any such request for an extension of the Closing Date (the “Extended Closing Date”), such consent, if granted, shall promptly deliver be subject to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter.following conditions:
Appears in 1 contract
Samples: Agreement of Purchase and Sale
Financing. (a) Subject Each of Parent and Merger Sub shall use their respective reasonable best efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, obtain or cause and consummate the Financing in an amount required to be obtained, and to consummate, satisfy the Committed Debt Financing on or prior to Required Amount not later than the Closing Date on the terms and conditions described in or contemplated by the Financing Letters (including complying with any valid request requiring the exercise of “market flex” provisions in the fee letter associated with the Debt Commitment Letters) (or on other terms with respect to conditionality that are not less favorable to Parent than the conditions set forth in the Debt Commitment LetterFinancing Letters and otherwise on terms and conditions as would not have any result, event or consequence described in any of clauses (A) through (D) of Section 6.15(c), including using reasonable best efforts to: to (i) maintain in full force and effect the Debt Commitment Letter Financing Letters and comply with its obligations thereunder; the Limited Guarantee, (ii) negotiate and execute definitive agreements with respect to the Debt Financing Documents required to pay the Required Amount (after taking into account any available Equity Financing) (which, with respect to the bridge facility documentation, shall not be required until reasonably necessary in connection with the funding of the Debt Financing required to pay the Required Amount (after taking into account any available Equity Financing)) on the terms and conditions contained in the Debt Commitment Letter Letters (including any which may reflect “market flex” provisions related thereto); provisions) (iii) satisfy or on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter other terms with respect to conditionality that are within Constellation’s control (but excluding any condition where not less favorable to Parent than the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment LetterFinancing Letters and otherwise on terms and conditions as would not have any result, event or consequence described in any of clauses (A) through (D) of Section 6.15(c)) (such definitive agreements, the “Definitive Financing Agreements”), (iii) satisfy and comply with on a timely basis (except to the extent that Parent and Merger Sub have obtained the waiver of) all conditions and covenants to the funding or investing of the Financing required to pay the Required Amount applicable to Parent or Merger Sub in the Financing Letters and the Definitive Financing Agreements that are within their control that are to be satisfied by Parent or Merger Sub, (iv) consummate the Committed Debt Financing in an amount required to pay the Required Amount or enforce the Limited Guarantee at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (Bv) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one Financing Letters and the Limited Guarantee. Neither Parent nor Merger Sub shall release or more consent to the termination of the Other Parties obligations of any Investor to provide the Equity Financing in writing, an amount required to pay the Required Amount or to the extent consistent with termination of obligations under the Debt Commitment LetterLimited Guarantee.
Appears in 1 contract
Financing. (a) Subject Buyer shall use its reasonable best efforts to the terms (and conditions of this Agreement, Constellation shall cause its Affiliates and its and its Affiliates’ Representatives to use their respective reasonable best efforts to) take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, consummate and obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date a timely basis on the terms and conditions set forth described in the Debt Commitment LetterLetter at or prior to the Closing, including using its reasonable best efforts to: to (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; under the Commitment Letter in accordance with the terms and conditions thereof (subject to Buyer’s right to amend, restate, amend and restate, modify, supplement and/or waive the Commitment Letter and the related definitive debt agreements in accordance herewith), provided that such efforts shall not require any material modification of, or waiver of any rights under, the Commitment Letter, or any material payment or concession that would not be required under the terms of the Commitment Letter as in effect on the date hereof and disclosed to Seller, (ii) promptly negotiate and execute enter into definitive agreements and documents with respect to the Financing (the “Debt Financing Documents Agreements”) on the terms and conditions contained in the Debt Commitment Letter (including any “flex” provisions related applicable thereto); , (iii) satisfy or cause to be satisfied on a timely basis, basis (or obtain a waiver of, any financing ) all conditions required for funding of the Financing and applicable to Buyer in the Debt Commitment Letter and the Debt Financing Agreements to the fullest extent that they are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); its control, (iv) upon satisfaction of the financing assuming that all conditions set forth contained in the Debt Commitment LetterLetter have been satisfied or waived, to consummate the Committed Debt Financing at or prior to the Closing, Closing (including to cause by instructing the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or to provide the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice Financing, on the terms and subject to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by conditions set forth in the foregoing provisions of this Section 6.15(aCommitment Letter) and (Bv) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one Letter at or more of the Other Parties in writing, prior to the extent consistent with the Debt Commitment LetterClosing.
Appears in 1 contract
Financing. (a) Subject Prior to the terms Closing, each of Sellers shall use its commercially reasonable efforts to cause the Acquired Companies to provide, and conditions of this Agreement, Constellation shall take, or use its commercially reasonable efforts to cause the Acquired Companies’ Representatives to be takenprovide, all actions cooperation reasonably requested by Buyer necessary for the arrangement of debt financing in connection with the transactions contemplated by this Agreement (the “Debt Financing”), including by (a) participant in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, at reasonable times and with reasonable advance notice, (b) to dothe extent required by the Debt Financing, or cause using commercially reasonable efforts to be donefacilitate the pledging of collateral, all things necessary, proper or advisable to obtain or cause to be obtainedeffective no earlier than the Closing, and to consummate(c) furnishing Buyer and the lenders providing such Debt Financing (such lenders, the Committed Debt “Financing on or prior Parties”) as promptly as reasonably practicable following the delivery of a request to Sellers by Buyer such financial and other information regarding the Acquired Companies as is reasonably available to Sellers at such time and is customarily required in connection with the execution of financings of a type similar to the Closing Date on the terms and conditions set forth in the Debt Commitment LetterFinancing; provided, including using reasonable best efforts to: however, that (iv) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto)shall not be a condition to Closing; (iiiw) satisfy on a timely basisnothing herein shall require such cooperation to the extent it would materially and unreasonably interfere with the ordinary conduct of business of the Company, (x) none of the Company, its equityholders nor its managers or obtain a waiver ofdirectors shall be required to enter into, approve or file any financing conditions in the Debt Commitment Letter document that are within Constellation’s control (but excluding any condition where the failure to would be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or effective prior to the Closing, including (y) no failure of Sellers or the Company to cause comply with this Section 5.24 shall relieve Buyer of its obligation to consummate the Debt transactions contemplated in this Agreement, nor shall such failure, on its own, permit Buyer to terminate this Agreement, and (z) nothing herein shall xxxxx Xxxxxxx, the Acquired Companies or their Affiliates (i) the right to enforce the terms of this Agreement against the Financing Sources and the Parties or (ii) any other persons committing to fund the Committed Debt rights or claims against any Financing to fund the Committed Debt Financing at the Closing Party solely in such amount which, taken together their respective capacities as lenders in connection with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, whether at law or otherwise expandsin equity, amends in tort, contract or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letterotherwise.
Appears in 1 contract
Financing. (a) Subject Purchaser shall use its reasonable best efforts to cause the financing that is subject to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior to the Closing Date on the terms and conditions condition set forth in the Debt Commitment Letter, including using reasonable best efforts to: (iSection 7.3(e) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letteravailable at Closing. In connection with such financing, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing Sellers shall cooperate in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, good faith (and shall cause its Subsidiaries not the Company Group to permit or agreecooperate in good faith) with Purchaser’s efforts to obtain such financing, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that including through: (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have participation in a reasonable number of meetings (A) provided prior written notice to the Other Parties including allowing direct contact between appropriate members of any terminationmembers of senior management, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions representatives and non-legal advisors of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount Sellers and the transaction expenses of all partiesCompany Group and Purchaser’s lenders and debt investors and their representatives), drafting sessions, presentations and due diligence sessions; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for assisting Purchaser in the avoidance of doubt, neither the existence nor the exercise preparation of any “flex” provision in customary information memorandum and other customary materials to facilitate the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver financing to the Other Parties copies extent required by Purchaser; provided, that none of the Sellers or the Company Group shall be required to pay any such terminationfees (other than reasonable out-of-pocket expenses to be reimbursed by Purchaser) or incur any other liability in connection with the financing except for any liability of a member of the Company Group that will only arise after the occurrence of the Closing. In addition, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation Sellers shall, and shall cause its applicable Subsidiary the Company Group to, take provide all actions required necessary documentation and other information about the Company Group and each of their respective representatives as is reasonably requested with respect to enforce its rights under applicable “know your customer” and anti-money laundering rules and regulations (including the Debt Commitment LetterUSA PATRIOT Act), including as may be directed by one or more of and shall cooperate with the Other Parties in writingPurchaser’s lenders, to the extent consistent required in connection with the Debt Commitment Letterfinancing, to establish bank and other accounts and blocked account agreements and/or lock box arrangements on behalf of members of the Company Group SHARE PURCHASE AND SALE AGREEMENT Page 43 reasonably necessary in connection with the requirements of the Purchaser’s lenders to extend the debt financing (provided that no such agreements shall be effective prior to Closing).
Appears in 1 contract
Samples: Share Purchase and Sale Agreement (NuStar Energy L.P.)
Financing. Buyer shall use reasonable best efforts to obtain the Financing on the terms described in the Financing Commitments, including using reasonable best efforts (ai) Subject to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter on the terms and conditions described therein or on other terms not materially less beneficial to Buyer and not reasonably likely to result in the Closing not occurring pursuant to Section 1.3(a) (but in no event including any terms that expand the conditions precedent to the Financing), (ii) to satisfy on a timely basis all conditions applicable to Buyer set forth in the Debt Commitment Letter and the Investment Commitment Letter and (iii) to consummate the Financing at the Closing, including enforcing the obligations of this Agreementthe lenders and other Persons providing the Financing contemplated by the Financing Commitments to fund the Financing. Buyer shall keep the Company apprised of the status of, Constellation shall takeand any developments in, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable its efforts to obtain or cause to be obtained, and to consummate, the Committed Debt Financing on or prior (including any breach by a party to the Closing Date Financing Commitments)and shall deliver to the Company true, correct and complete copies of all definitive agreements for the Financing promptly when entered into (subject to the redaction of pricing information). In the event that any portion of the financing described in the Debt Commitment Letter becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter, including using Buyer shall promptly notify the Company, and Buyer shall use its reasonable best efforts to: (i) maintain to obtain alternative debt financing as promptly as possible following such event, including from alternative financing sources, on terms not materially less favorable in effect the aggregate to Buyer than those in the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained not reasonably likely to result in the Debt Commitment Letter Closing not occurring pursuant to Section 1.3(a) (and in no event including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing terms that expand the conditions in precedent to the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth debt Financing in the Debt Commitment Letter, ) that will enable Buyer to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expensestransactions contemplated by this Agreement. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation Buyer shall not agree to or permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver supplement or replacement (A) other modification that reduces (or would have the effect of reducing) the aggregate total amount of the Committed Debt Financing; Financing or (B) imposes new or any additional conditions or otherwise expands, amends or modifies any condition precedent to the availability of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of Financing contemplated by the Debt Commitment Letter in a manner that would reasonably be expected any material respect ;without the Company’s written consent. The Buyer shall not, and shall use its reasonable best efforts to cause Investor not to, consent to the assignment of any of Credit Suisse Securities (xUSA) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in LLC’s commitments under the Debt Commitment Letter that are in Constellation’s control) on without the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more consent of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter.Company. 57
Appears in 1 contract
Financing. (a) Subject Each of the Sponsor Entities shall use, and shall cause its Affiliates to the terms and conditions of this Agreementuse, Constellation shall reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause arrange the Financing on the terms and conditions described in the Financing Commitments, including, in the case of the Debt Financing, reasonable best efforts (i) to be obtained, negotiate and to consummate, enter into the Committed definitive agreements with respect thereto on the terms and conditions contained in the Debt Financing Commitments (or on or prior other terms acceptable to FinCos, provided such terms do not contain any conditions to funding on the Closing Date that are not set forth in the Debt Financing Commitments and would not otherwise reasonably be expected to impair or delay the consummation of the Debt Financing), (ii) to satisfy (or cause its Affiliates to satisfy) on a timely basis all conditions applicable to the Sponsor Entities (or their Affiliates) set forth therein that are within the control of any of the Sponsor Entities (or such Affiliates) and (iii) to consummate the Debt Financing contemplated by the Debt Commitment Letter at the Closing, including using its reasonable best efforts to cause the lenders and the other persons providing such Debt Financing to fund the Debt Financing required to consummate the Merger at the Closing (including by taking enforcement action to cause such lenders and other persons providing such Debt Financing to fund such Debt Financing). In the event that any portion of the Debt Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment LetterFinancing Commitments, including using FinCos shall promptly notify the Company, and the Sponsor Entities shall use their reasonable best efforts to: to obtain, as promptly as practicable following the occurrence of such event, any such portion from alternative sources (i“Alternative Financing”) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms that will still enable the Sponsor Entities to consummate the transactions contemplated by this Agreement and that are not less favorable in the aggregate (as determined by FinCos in their reasonable judgment) to the Sponsor Entities and the Company than those contained in the Debt Commitment Letter Financing Commitments. FinCos shall deliver to the Company true and complete copies of all agreements (excluding any fee letters and engagement letters which, by their terms are confidential, except to the extent any such letters contain conditions to the consummation of the Debt Financing (including any pursuant to so-called “flex” provisions related theretoprovisions); (iii) satisfy on a timely basis, pursuant to which any such alternative source shall have committed to provide FinCos or obtain a waiver of, the Surviving Corporation with any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any portion of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of In the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided event that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take all or any other event, fact or circumstance that would be restricted by portion of the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying high yield financing described in the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall Financing Commitments has not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Siriusbeen consummated, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision all closing conditions contained in the Debt Commitment Letter Article VI shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver have been satisfied or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment Letter.waived (other
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Financing. (a) Subject Purchaser shall use commercially reasonable efforts to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause funds in an amount sufficient to be obtained, and to consummate, fund the Committed Debt Financing on or prior to the Closing Date Amounts on the terms and conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter on or prior to the date upon which the Sale is required to be consummated pursuant to the terms hereof. In furtherance and not in limitation of the foregoing, Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable or proper to obtain the proceeds of the Financing on the terms and conditions described in the Debt Commitment Letter and the Equity Commitment Letter, as applicable, as promptly as possible but in any event on or prior to the date upon which the Sale is required to be consummated pursuant to the terms hereof, including by (including any i) maintaining in effect the Equity Commitment Letter and the Debt Commitment Letter, (ii) negotiating and entering into definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) consistent with the terms and conditions contained therein (including, as necessary, the “flex” provisions contained in any related thereto); fee letter) and (iii) satisfy satisfying on a timely basis, or obtain a waiver of, any financing basis all conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together Definitive Agreements and complying with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expensesits obligations thereunder. Constellation Purchaser shall keep the Other Parties informed on a reasonably current basis of the status of comply with its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agreeobligations, and shall cause enforce its Subsidiaries not to permit or agreerights, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of under the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have and Definitive Agreements in a timely and diligent manner. Without limiting the effect of reducing) the aggregate amount generality of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expandsforegoing, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter event that are all conditions contained in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive Definitive Agreements (other than the consummation of the Sale and those conditions the failure of which to be satisfied is attributable to a breach by Purchaser of its representations, warranties, covenants or agreements contained in this Agreement, and other than, with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more availability of the Other Parties in writingEquity Financing) have been satisfied, Purchaser shall use reasonable best efforts to cause the extent consistent Lenders and Equity Investors to comply with the Debt Commitment Lettertheir respective obligations thereunder.
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Financing. (a) Subject to the terms and conditions of this Agreement, Constellation Buyer shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper necessary or advisable to obtain or cause arrange the Financing as promptly as practicable following the date of this Agreement and to consummate the Financing on the Closing Date. Such actions shall include, but not be limited to, the following: (i) maintaining in effect the Commitment Letters, (ii) causing the Equity Financing to be obtainedconsummated upon satisfaction of the applicable Financing Conditions, (iii) satisfying on a timely basis all Financing Conditions, (iv) negotiating, executing and delivering Debt Financing Documents that reflect the terms contained in the Senior Facilities Agreement or on such other terms acceptable to Buyer and its financings sources, and to consummate(v) drawing the full amount of the Financing, in the Committed Debt Financing on or prior to event that the Closing Date on the terms and conditions set forth in Section 7.02 and the Financing Conditions have been satisfied or, upon funding would be satisfied. Buyer shall give Seller prompt notice of any breach or threated or anticipated breach by any party to the Debt Commitment LetterFinancing Document of which Buyer or its Affiliates becomes aware. Without limiting Buyer’s other obligations under this Section 6.07, including using if a Financing Failure Event occurs Buyer shall (a) immediately notify Seller of such Financing Failure Event and the reasons therefore, (b) use commercially reasonable best efforts to: to obtain alternative financing from alternative financing sources (ion terms as favorable to Buyer as are reasonably available at such time), in an amount sufficient to make the Transaction Payments and consummate the transactions contemplated by this Agreement, as promptly as practicable following the occurrence of such event, and (c) maintain obtain, and when obtained, provide the Seller with a copy of, a new financing commitment, provided that such replacement financing commitments shall not have any terms or conditions which are more onerous on Buyer than those contained in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including and which would reasonably be expected to restrict, prevent or delay Buyer’s ability to perform its payment obligations contemplated by this Agreement. Neither Buyer nor any “flex” provisions related thereto); (iii) satisfy on a timely basisof its Affiliates shall amend, modify, supplement, restate, assign, substitute or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of replace any of the Other Parties’ failure Commitment Letters or any Debt Financing Document (except for substitutions and replacements pursuant to, and subject to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions limitations set forth in in, the Debt Commitment Letterimmediately preceding sentence) if it would adversely affect the availability of (or conditions to) funding thereunder or Buyer’s ability to pay the Purchase Price or meet its obligations under this Agreement. Buyer shall not consent to any assignment of rights or obligations under the Senior Facilities Agreement without the prior written approval of Seller, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required approval not to be pay the Debt Payoff Amount unreasonably withheld, delayed or conditioned. Buyer shall consult with and all transaction expenses. Constellation shall keep the Other Parties Seller informed on a reasonably current basis in reasonable detail of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agreeUpon the reasonable request of Seller, Buyer will confirm (x) with its financing sources their intent and ability to perform, and shall cause its Subsidiaries not the availability of the Financing, under the Commitment Letters, subject only to permit satisfaction or agree, to any termination, amendment or modification to be made to, or any waiver of the Financing Conditions, and (y) that neither it nor its financing sources are aware of any provision under, event or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner condition that would could reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions result in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability failure of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have (A) provided prior written notice to the Other Parties of any termination, amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, Constellation shall, or shall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to the extent consistent with the Debt Commitment LetterCondition.
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